Kerala High Court
Shabir Ali vs S.Ramesh on 5 June, 2025
CRL.A NO. 732 OF 2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
THURSDAY, THE 5 DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
CRL.A NO. 732 OF 2013
AGAINST THE JUDGMENT IN Crl.A NO.861 OF 2011 DATED 01.03.2012 ON THE FILE
OF THE COURT OF SESSIONS, KOZHIKODE DIVISION, AS AGAINST THE JUDGMENT IN
CC NO. 281/2011 DATED 01.12.2011 ON THE FILE OF THE SPECIAL JUDICIAL
FIRST CLASS MAGISTRATE COURT (MARAD CASES) KOZHIKODE.
APPELLANT/RESPONDENT/COMPLAINANT:
SHABIR ALI
S/O. ABDUL LATHEEF, MUNDIYODINILAM, NEAR QUALITY BRICKS,
CIVIL STATION P.O., KOZHIKODE.
BY ADV SRI.ABDUL RAOOF PALLIPATH
RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 S.RAMESH
AGED 45 YEARS, S/O. GOPALAKRISHNAN, ABHISHEKAM, PULPARAMBU,
POKKUNNU P.O., NEAR KUNNATH BAGAVATHY TEMPLE, KOZHIKODE -
673 013.
2 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
BY ADV SRI.T.G.RAJENDRAN
OTHER PRESENT:
PP ADV SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2025, THE
COURT ON 05.06.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 732 OF 2013
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A. BADHARUDEEN, J
============================
Crl appeal No. 732 of 2013
==============================
Dated 05th day of June 2025
JUDGMENT
The complainant in C.C. No. 281 of 2011 on the files of the
Special Judicial First Class Magistrate Court (Marad cases),
Kozhikode, has filed this appeal under Section 374 of the Code of
Criminal Procedure, challenging the judgment in Crl.Appeal
No.861 of 2011 dated 01.03.2012 on the files of the Sessions
Court, Kozhikode Division arising from judgment in C.C. No.
281 of 2011 dated 01.12.2011 on the files of the Special Judicial
First Class Magistrate Court, Kozhikode.
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2. The 1st respondent is the accused before the trial court
and the appellant before the Sessions court. The 2nd respondent is
the State of Kerala.
3. Heard the matter in detail. Perused the records and the
judgments rendered by the trial court as well as the appellate court.
4. For effective and easy discussion, the parties in this appeal
will be referred to as 'complainant' and 'accused' hereafter.
Short facts:-
5. On dishonour of cheque dated 09.04.2011 for
Rs.2,75,000/- drawn on Punjab National Bank issued by the
accused in favour of the complainant for a legaly enforceable debt,
the complainant lodged complaint before the trial court alleging
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commission of offence punishable under Section 138 of the
Negotiable Instruments Act (for short, "the NI Act").
6. The trial court recorded evidence confined to that PW1
and Exts.P1 to P7 on the side of the complainant. Even though
opportunity was provided to the accused to adduce defence
evidence after questioning him under Section 313(1)(b) of
Cr.P.C., he did not adduce any evidence. On appreciation of
evidence, learned Magistrate found that the accused was guilty for
the offence punishable under Section 138 of the NI Act, and
accordingly, he was sentenced to undergo imprisonment till rising
of the court, and to pay compensation of Rs.2,75,000/-, and sixty
days default imprisonment for non payment of compensation also
was imposed.
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7. The accused challenged the verdict of the trial court before
the court of Session, Kozhikode, as per judgment dated
01.03.2012 in Crl. Appeal No. 861 of 2011, the appellate court
reversed the said finding and acquitted the accused.
8. While supporting the judgment of the trial court and
impeaching the veracity of the finding of the appellate court, the
learned counsel for the complainant argued that in this matter,
the accused and the complainant are friends and worked together
in the Orange Offset printing press, Kozhikode. While so, the
accused demanded some amount for the treatment of his father
and also to clear his debt. Accordingly, the complainant given
Rs.2,75,000/- on 10.06.2010, and the accused executed Ext.P1
agreement dated 10.06.2010 acknowledging the said amount.
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Later, Ext.P2 cheque dated 09.04.2011 for Rs.2,75,000/- of
Punjab National Bank also was issued in discharge of the said
liability. It is argued by the learned counsel for the complainant
that the complainant examined himself as PW1 and proved the
transaction that led to the execution of Ext.P2 cheque as well as
Ext.P1 agreement. Thus on appreciation of evidence, the trial
court convicted the accused, but the appellate court acquitted the
accused on finding lacuna in the evidence of PW1, in a case where
PW1 was not even effectively cross-examined to dispute the
transaction. According to the learned counsel for the
complainant, mere failure to deny the suggestion that the entries
in the cheque were made by the complainant is the sole reason
whereby the appellate court found that the case of the
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complainant was not proved by PW1. According to the learned
counsel for the complainant, the appellate court did not correctly
appreciate the evidence where twin presumptions under Sections
118 and 139 of the NI Act is available in favour of the
complainant. Therefore, the judgment of acquittal rendered by
the appellate court negating the finding of the trial court is
patently wrong, and the same would require interference.
9. Whereas the learned counsel for the accused supported the
verdict of the appellate court and opposed the verdict of the trial
court, relying on the evidence of PW1. It is argued by the learned
counsel for the accused that in this matter, the accused borrowed
Rs.1,15,000/- and repaid Rs.1 lakh. While Rs.15,000/- was
pending as balance, the complainant demanded huge amount by
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way of interest. Thereafter, he misused the blank cheque issued
by the accused while receiving Rs.1,15,000/- for the purpose of
this case. It is also pointed out that on receipt of legal notice of
demand, the accused issued Ext.P7 reply disclosing these aspects.
That is the reason why during cross-examination PW1 failed to
deny the suggestion that the cheque was filled up by him. He also
submitted that PW1 deposed that one Abdul Gafoor was present
during the transaction. But he was not examined to prove the
case of the complainant. Therefore, the 1st appellate court
rightly found that the evidence of PW1 did not inspire confidence
to be acted upon. Therefore the finding of the appellate court is
only to be confirmed holding that the complainant failed to prove
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the transaction led to execution of Ext.P2 cheque as well as Ext.P1
agreement.
10. Addressing the contentions, the points that arise for
consideration are as follows:-
1. Whether the appellate court is justified in
reversing the finding of the trial court that the
accused committed offence punishable under
Section 138 of the NI Act, holding that the
complainant failed to prove the transaction led to
execution of Ext.P2 cheque and Ext.P1
agreement?
2. Is there any interference required in the
judgment of the appellate court?
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3. The order to be passed?
Point Nos. 1 & 2:-
11. In this matter, the complainant got examined as PW1 and
he deposed in tune with the averments in the complaint.
According to him, the accused is familiar with him and he is one of
his friends and they worked together in Orange offset printing
press. While so, the accused demanded Rs.4 lakh for the purpose
of the treatment of his father and to clear his loan liability, since he
informed that if not the accused had to commit suicide. Then the
complainant offered to give some money after selling his property,
which was proposed to be sold by the time. Later on 10.06.2010,
the accused borrowed Rs.2,75,000/- from the complainant at the
Orange Offset printing press and acknowledging the said receipt
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of money, the accused executed Ext.P1 agreement. Later, he issued
Ext.P2 cheque for Rs.2,75,000/- on 09.04.2011 to discharge his
liability with the assurance of encashment. The cheque was when
presented for collection, the same was dishonoured for the reason
'funds insufficient'. He also deposed that the dishnour of the
cheque was intimated to the accused by registered lawyer's notice,
but the accused failed to repay the same even on acceptance of
notice, though he issued Ext.P7 reply notice. Ext.P1 agreement
dated 10.06.2010, Ext.P2 the cheque dated 09.04.2011 for
Rs.2,75,000/- of Punjab National Bank, Ext.P3 dishonour memo
dated 09.04.2011, Ext.P4 copy of lawyer's notice, Ext.P5 postal
receipt dated 26.04.2011 Ext.P6 postal acknowledgement card and
Ext.P7 reply notice dated 12.05.2011 were marked through PW1.
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PW1 was cross-examined with limited questions. Regarding
Ext.P1, it was suggested that the same was forged by the
complainant, and the said suggestion was denied by PW1. No
more questions asked suggesting creation of Ext.P1 in any other
manner. Another suggestion was made to PW1 to the effect that
the entries in the cheque were in the handwriting of the
complainant., he did not either admit or deny the same, but the
answer was that the cheque was signed and given by the accused.
It is true that he did not deny the handwriting on the cheque as
that of his own. The 1st appellate court in paragraph No.9
observed that PW1 had no case that accused signed in Ext.P1
document in his presence, where no serious cross-examination
effected, challenging Ext.P1 rather than mere suggestion that it
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was a forged document. Non-examination of independent witness
also is a reason found by the appellate court to hold that the
complainant failed to prove his case. For these reasons, the learned
sessions judge found fault with the complainant's case and negated
the finding of the trial court.
12. This is a case in which the complainant put up a case that,
the accused, being his friend, in dare need of money, demanded
some amount from him for the treatment of his father and to clear
his debt on the assertion that otherwise he had no option other
than to commit suicide. Accordingly, the accused borrowed
Rs.2,75,000/- and executed Ext.P1 agreement acknowledging the
same. Regarding Ext.P1, the only suggestion during
cross-examination is that it was a forged document. Regarding
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Ext.P2 also the accused denied the liability as well as the execution
of Ext.P2. Apart from that, no effective cross-examination carried
out. It is relevant to note that the issuance of cheque is admitted
by the accused for a transaction to the tune of Rs.1,15,000/-, and
out of which, admittedly, Rs.15,000/- yet to be discharged. Even
though repayment of Rs.1 lakh out of the money admittedly
borrowed by the accused had been alleged, no evidence
forthcoming to substantiate the said plea of discharge. In such a
case, the appellate court approached the matter in a most
hypertechnical manner by giving much emphasis on the evidence
of PW1 on the premise that PW1 did not deny the suggestion as to
his handwriting in the cheque, and also the entries in the cheque
were put in black ink, and the signature is in blue ink.
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13. In this connection, it is relevant to refer the decision of
the Apex Court in (2019 0 Supreme (SC) 126 : 2019 (1) KLT 598
: 2019 (1) KHC 774 : 2019 (1) KLD 420) Bir Singh v. Mukesh
Kumar, where in paragraph Nos. 36 to 40 and 42, the Apex Court
summarized the legal position as regards to the applicability S.20,
S.87 and S.139 of the NI Act, after referring the earlier decisions
of the Apex Court reported in (2013 (1) SCC 177) MSR Leathers
v. S. Palaniappan, (2008 (14) SCC 457) Southern Sales and
Services v. Sauermilch Design and Handels GMBH, (2001 (6)
SCC 16) Hiten P. Dalal v. Bratindranath Banerjee, (AIR 1958
SC 61) State of Madras v. Vaidyanatha Iyer, (2005 (5) SCC 294)
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra,
(2007 (1) SCC 70) Rajesh Ranjan Yada @ Pappu Yadav v. CBI
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through its Director, (2012 (13) SCC 375) Laxmi Dyechem v.
State of Gujarat, (2001 (8) SCC 458) K. N. Beena v.
Muniyappan, (2012 (1) SCC 260) R. Vijayan v. Baby, (2009 (6)
SCC 72) Raj Kumar Khurana v. State of (NCT of Delhi), (2007
(12) SCC 714) John K. John v. Tom Varghese, (2008 (4) SCC 54)
Krishna Janardhan Bhat v. Dattatraya G. Hegde and (1992 (1)
SCC 489) State of Punjab v. Surinder Kumar. Paragraph Nos.
36 to 40 and 42 are extracted as under:
36. The proposition of law which emerges from
the judgments referred to above is that the onus
to rebut the presumption under S.139 that the
cheque has been issued in discharge of a debt or
liability is on the accused and the fact that the
cheque might be post dated does not absolve the
drawer of a cheque of the penal consequences of
S.138 of the Negotiable Instruments Act.
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37. A meaningful reading of the provisions of
the Negotiable Instruments Act including, in
particular, S.20, S.87 and S.139, makes it amply
dear that a person who signs a cheque and makes
it over to the payee remains liable unless he
adduces evidence to rebut the presumption that
the cheque had been issued for payment of a
debt or in discharge of a liability, it is immaterial
that the cheque may have been filled in by any
person other than the drawer, if the cheque is
duly signed by the drawer, if the cheque is
otherwise valid, the penal provisions of S.138
would be attracted, 38, if a signed blank cheque
is voluntarily presented to a payee, towards some
payment, the payee may fill up the amount and
other particulars. This in itself would not
invalidate the cheque. The onus would still be
on the accused to prove that the cheque was not
in discharge of a debt or liability by adducing
evidence.
39. It is not the case of the respondent-accused
that he either signed the cheque or parted with
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it under any threat or coercion. Nor is it the case
of the respondent-accused that the unfilled
signed cheque had been stolen. The existence of
a fiduciary relationship between the payee of a
cheque and its drawer, would not disentitle the
payee to the benefit of the presumption under
S.139 of the Negotiable Instruments Act, in the
absence of evidence of exercise of undue
influence or coercion. The second question is
also answered in the negative
40. Even a blank cheque leaf, voluntarily signed
and handed over by the accused, which is
towards some payment, would attract
presumption under S.139 of the Negotiable
Instruments Act, in the absence of any cogent
evidence to show that the cheque was not issued
in discharge of a debt.
xxxx xxxx xxxx
42. In the absence of any finding that the cheque
in question was not signed by the respondent -
accused or not voluntarily made over to the
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payee and in the absence of any evidence with
regard to the circumstances in which a blank
signed cheque had been given to the appellant -
complainant, it may reasonably be presumed
that the cheque was filled in by the appellant -
complainant being the payee in the presence of
the respondent - accused being the drawer, at his
request and/or with his acquiescence. The
subsequent filing in of an unfiled signed cheque
is not an alteration. There was no change in the
amount of the cheque, its date, or the name of
the payee. The High Court ought not to have
acquitted the respondent-accused of the charge
under S.138 of the Negotiable Instruments Act.
14. Insofar as the legal position as regards to the issuance of
blank cheque is concerned, the same is well settled and espoused in
Bir Singh's case (supra). Thus, even a blank cheque leaf,
voluntarily signed and handed over by the drawer/payer, which is
towards some payment, would attract presumptions under S.118
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and S.139 of the NI Act, in the absence of any cogent evidence to
show that the cheque was not issued in discharge of a debt or legal
liability. In fact, law does not mandate that a cheque shall be in the
handwriting of the drawer/payer. On the contrary, a cheque can be
written by anybody other than drawer/payer, and the only
mandate of law is that holder in due course/payee has to prove the
transaction and execution of the cheque to impose criminal
culpability on the drawer/payer. In view of the above legal
position, merely because the cheque was written by another
person, instead the drawer himself, whether he is capable of
writing himself or otherwise, would not make the cheque invalid
or the prosecution case untrustworthy. Similarly mere omission to
deny the suggestion that the cheque was written by the
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complainant also is not a reason to disbelieve the case of the
complainant. In such cases also, when the transaction and
execution of the cheque is proved by evidence, presumptions
under S.118 and S.139 of the NI Act would squarely apply.
15. In the instant case, the evidence of PW1, which led to
transaction to the tune of Rs.2,75,000/- and execution of Ext.P1
cheque and Ext.P2 agreement, were not even put to effective cross
examination and in such a case the appellate court went wrong in
holding that the evidence of PW1 was insufficient to prove the case
of the complainant. In fact the trial court rightly appreciated the
evidence and recorded the conviction. Since the reason given by
the appellate court to set aside the conviction imposed by the trial
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court are not justifiable, it is necessary in the interest of justice to
interfere with the judgment of the appellate court.
16. In the result, this appeal stands allowed and the judgment
of acquittal rendered by the Trial Court stands set aside.
Consequently, the accused is convicted for the offence punishable
under S.138 of the NI Act and he is sentenced to undergo simple
imprisonment for a period of one day till rising of the Court and
to pay fine of Rs.3,25,000 (Rupees Three Lakh twenty-five
Thousand Only). Fine shall be given as compensation to the
complainant under S.357(1)(b) of CrPC. In default of payment of
fine, the accused shall undergo default imprisonment for a period
of 8 months. The accused is directed to surrender before the Trial
Court to undergo the modified sentence positively at 11.00 a.m on
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02.07.2025 and on failure to do so, the Trial Court is directed to
execute the modified sentence imposed by this Court, without fail.
Registry is directed to forward a copy of this judgment to the
Trial Court for information and compliance, within seven days
from the date of receipt of a copy of this judgment.
Sd/-
A.BADHARUDEEN, JUDGE
RMV
