Kerala High Court
Ratheesh.S vs Joe Jacob on 11 June, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
CRL.A NO. 2713 OF 2008
ARISING OUT OF THE JUDGMENT DATED 09.07.2008 IN ST NO.1929 OF
2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOTTAYAM
APPELLANT/COMPLAINANT:
RATHEESH S.
THEKKEMADOM HOUSE,
CHINGAVANAM P.O., KOTTAYAM.
BY ADV SRI.M.P.MADHAVANKUTTY
RESPONDENTS/ACCUSED & STATE:
1 JOE JACOB,
KOCHERIL HOUSE,
CHINGAVANAM P.O., KOTTAYAM.
2 STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADV SRI.LIJI.J.VADAKEDOM
SENIOR PUBLIC PROSECUTOR SRI RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2025,
THE COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
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Crl.Appeal No.2713/2008 2
"C.R"
A. BADHARUDEEN, J.
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Crl.Appeal No.2713 of 2008
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Dated this the 11th day of June, 2025
JUDGMENT
This appeal is at the instance of the complainant in
S.T.No.1929/2006 on the files of Judicial First Class Magistrate Court-I,
Kottayam, challenging the judgment of acquittal dated 09.07.2008 in the
said case. The 1st respondent herein is the accused and the 2 nd respondent
is State of Kerala.
2. I shall refer the parties in this appeal with reference to
their status before the trial court as `complainant' and `accused' hereinafter
for easy reference.
3. Heard the learned counsel for the complainant/accused
and the learned Public Prosecutor in detail.
4. Perused the trial court records and the judgment under
challenge.
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5. The prosecution case emanated when the complainant
filed a complaint before the trial court alleging commission of offence
punishable under Section 138 of the Negotiable Instruments Act by the
accused. The case of the complainant is that the accused had issued
cheque for Rs.50,000/- dated 07.03.2006 in discharge of his liability
towards the complainant on the assurance of encashment. But when
cheque was presented for collection, the same was dishonoured for want of
funds. When legal notice of demand was issued, the same was returned
unclaimed.
6. The trial court took cognizance of the matter and
recorded evidence confined to that of PW1 and Exts.P1 to P6 on the
sideuij of the complainant.
7. Even though after questioning the accused under Section
313(1)(b) of Cr.P.C, opportunity was given to the accused to adduce
evidence, no defence evidence was adduced.
8. On appreciation of evidence, the trial court found that
mere putting of signature in a cheque leaf would not tantamount to
drawing of a cheque and therefore preponderances of probabilities in this
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case were that the cheque leaf had been given as signed blank, as stated by
the accused, when he borrowed Rs.10,000/- from the complainant.
9. While canvassing interference in the judgment
impugned, it is pointed out by the learned counsel for the complainant that
by the evidence of PW1 supported by Exts.P1 to P6, the complainant
discharged the initial burden in the matter of transaction to the tune of
Rs.50,000/- borrowed by the accused on 25.02.2006 from him after
executing Ext.P1 cheque; and issuance of Ext.P1 for the discharge of the
said amount. Therefore, the trial court should have given the benefit of
presumptions under Sections 118 and 139 of the N.I Act in favour of the
complainant. It is urged that for the above reasons the trial court verdict
would require interference.
10. Repelling this argument, the learned counsel for the
accused argued much to sustain the verdict of acquittal. The specific case
of the accused is that on receipt of Rs.10,000/- from the complainant, the
accused issued a blank cheque leaf to him. The said cheque leaf was
misused by the complainant for the purpose of this case. Therefore, the
trial court is justified in holding that the complainant failed to prove his
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case. Therefore, the acquittal doesn't require any interference.
11. Upon the rival submissions, the points arise for
consideration are:
(i) Whether the trial court went wrong in holding that the
accused did not commit offence under Section 138 of the N.I Act?
(ii) Is it necessary to interfere with the verdict under
challenge?
(iii) Order to be passed?
Point Nos.(i) and (ii)
12. The specific case of the complainant is that the accused
borrowed Rs.50,000/- from him on 25.02.2006 and in discharge of the said
sum, Ext.P1 cheque dated 07.03.2006 was issued by the accused. The
further case of the complainant as deposed by him is that believing the
words of the accused, he accepted the cheque and presented the same for
collection, but the same was dishonoured for want of funds. He spoke
about issuance of a legal notice, which was returned unclaimed and also
reluctance on the part of the accused to repay the amount covered by the
cheque.
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13. Per contra, the case advanced by the accused is that he
borrowed Rs.10,000/- from the complainant and issued a blank cheque leaf
to him and the said cheque leaf was misused by the complainant. The trial
court while disbelieving the case of the complainant, believed the case of
the accused and held that mere putting of signature in a cheque leaf would
not tantamount to drawing of a cheque. It was observed by the trial court
further that the preponderances of probabilities in this case were that the
cheque leaf had been given as a signed blank one, as stated by the accused
and it was improbable that the accused would have given Rs.50,000/- to
the complainant, without any special circumstance for doing so. Further
the complainant had not stated any circumstances prompting him to give
Rs.50,000/- to the accused. Then it was found that the complainant could
not prove the case against the accused beyond reasonable doubt.
14. In the decision of the Apex Court reported 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 of S.20, S.87 and S.139 of the NI Act, after referring the
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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 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.
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
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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 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 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
unfilled 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."
15. In the instant case, the reasons stated by the trial court to
negate the case of the complainant as stated in paragraph No.6 are
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extracted hereunder:
"No ordinary person is expected to receive a cheque not
filled before him unless there is any special circumstance warranting
the same. The complainant has not stated any reason for receiving
such a cheque already brought filled. The version of the complainant
that the cheque had been brought filled is a circumstance supporting
the defense version that the cheque leaf had been given as a signed
blank one. No person can be considered to have drawn a cheque by
issuing a signed blank cheque leaf. The term "cheque" is defined u/s 6
of the N.I Act as a Bill of Exchange drawn on a specified banker. The
expression "Bill of Exchange" is defined u/s 5 of the Act as an
instrument in writing containing an unconditional order, signed by the
maker, directing a certain person to pay a certain sum money to a
certain person. In other words, on a close examination, sections 5 and
6 would make it clear that a cheque should be an instrument in writing
containing an unconditional order to pay a certain sum of money to a
certain person. The name of the drawee and the amount should be
definitely stated in the instrument to make it a cheque as defined under
Section 6 of the Act. This aspect is made clear by the Hon'ble High
Court of Kerala in paragraphs 34 and 35 of the judgment in
Kamalammal v. C.K.Mohanan and another, 2006(3) KLJ 95."
16. On perusal of the above reasoning, the same appears to
be strange and hyper-technical. There is no mandate in law that while
giving money to a person on the strength of issuance of a cheque or by
executing a promissory note or by executing any other similar documents
acknowledging the debt, there must be an independent witness or any other
witnesses to prove the said transaction. That is to say, in the absence of
witnesses also money dealings are legal. Similarly, there is no legal
mandate that a cheque shall be in the handwriting of the payer itself. In
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the instant case, issuance of a cheque by the accused, admitting transaction
to the tune of Rs.10,000/- is the case put in defense, without adducing any
evidence to prove the same. Further there is no contention for the accused
that the admitted liability also was discharged or no evidence to prove the
discharge. When the complainant produced Ext.P1 cheque in original, on
giving evidence that it was dishonoured for want of funds stating that the
accused borrowed Rs.50,000/- and in repayment of the same, the cheque
was issued, the trial court disbelieved the evidence of the complainant and
believed the case of the accused without support of any evidence, ignoring
the evidence given by PW1 and held that the case of the accused is more
probable. In fact, evidence of PW1 supported by Exts.P1 to P6 are
credible and sufficient enough to establish that the accused borrowed
Rs.50,000/- from the complainant and executed Ext.P1 cheque to
discharge the said liability. In such a case, the trial court wrongly
appreciated the evidence and recorded acquittal. Therefore, the judgment
would require interference.
Point No.(iii)
17. In the result, the appeal succeeds and is allowed
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accordingly. The judgment under challenge stands set aside and the
accused is convicted for the offence punishable under Section 138 of the
N.I Act. He is sentenced to undergo simple imprisonment for a day till
rising of court and to pay fine of Rs.1 lakh to the complainant. Fine, if
realised, the same shall be given as compensation to the accused under
Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused
shall undergo default imprisonment for a period of four months.
18. The accused is directed to appear before the trial court to
undergo the sentence at 11.00 a.m on 07.07.2025. On failure to do so, the
trial court is directed to execute the sentence as per law without fail.
Registry is directed to forward a copy of this judgment to the
court concerned for information and compliance.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
