Kerala High Court
Manal Sekharan vs M.Krishnadas on 13 June, 2025
2025:KER:41828
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
CRL.A NO. 2231 OF 2008
AGAINST THE JUDGMENT DATED 15.11.2007 IN ST NO.74
OF 2005 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS
FOR TRIAL OF MARADU CASES, KOZHIKODE
APPELLANT/COMPLAINANT:
MANAL SEKHARAN
S/O.KUTTAYI,
AYYAPPANKANDI PARAMBE,
RAHMAN BAZAR, P.O. KOLATHARA
KOZHIKODE
BY ADV SRI.K.A.SALIL NARAYANAN
RESPONDENT/ACCUSED AND STATE:
M.KRISHNADAS
MANAGING PARTNER, UNICON POLYMERS
KANNATIKULAM, P.O.KOLATHARA
KOZHIKODE
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKAULAM
SRI RENJITH GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.06.2025 AND THE COURT ON 12.06.2025 DELIVERED THE
FOLLOWING:
2025:KER:41828
CRL.A NO. 2231 OF 2008
2
JUDGMENT
Dated this the 13th day of June, 2025
This criminal appeal has been filed by the
complainant in ST 74/2005 on the files of the Judicial First
Class Magistrate Court-V, Kozhikode, challenging the
judgment of acquittal dated 15.11.2007. The 1st respondent
herein is the accused before the trial court and the 2 nd
respondent is the State of Kerala, represented by the Public
Prosecutor.
2. Heard the learned counsel for the
complainant/appellant and the learned Public Prosecutor in
detail. Perused the trial court records.
3. Even though notice was served upon the 1st
respondent/accused, he did not turn up.
4. I shall refer the parties in this appeal as
'complainant' and 'accused' for easy reference.
2025:KER:41828
CRL.A NO. 2231 OF 2008
5. The complainant lodged complaint before
the trial court, alleging commission of offence punishable
under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'NI Act' for short) by the accused,
on dishonour of Ext.P1 cheque dated 16.11.2004 for
Rs.1,25,000/- (Rupees one lakh twenty five thousand only),
alleged to be issued by the accused to the complainant in the
1st week of August, 2004. According to the learned counsel
for the complainant, though the accused issued cheque for
Rs.1,25,000/- dated 16.11.2004 with assurance of
encashment, the same got dishonoured for want of funds and
the accused failed to repay the same even after receipt of
demand notice.
6. The trial court took cognizance for the
offence punishable under Section 138 of the NI Act. During
trial, PW1 was examined and Exts.P1 to P5 were marked on
the side of the complainant. During cross-examination of
PW1, Exts.D1 to D8 were marked through PW1. After
2025:KER:41828
CRL.A NO. 2231 OF 2008
questioning the accused under Section 313(1)(b) of Cr.P.C.,
when an opportunity was provided to the accused to adduce
defence evidence, the accused himself got examined as
DW1, and Exts.D9 to D12 were marked.
7. On appreciation of evidence, the trial court
found that the accused is not guilty for the offence punishable
under Section 138 of the NI Act and accordingly, he was
acquitted.
8. The learned counsel for the complainant
argued that in this case, issuance of Ext.P1 cheque was
admitted and the case of the accused is that, he had
borrowed Rs.50,000/- (Rupees fifty thousand only) in the
year 2003 from the complainant for interest at the rate of 6%
and he regularly paid the interest as borne out from Exts.D1
to D8. Thereafter, on 22.06.2004, Rs.40,000/- (Rupees forty
thousand only) also was repaid towards the principal sum,
keeping Rs.10,000/- as balance. Therefore, issuance of
Ext.P1 cheque is admitted and the evidence given by PW1,
2025:KER:41828
CRL.A NO. 2231 OF 2008
supported by P1 to P5, the complainant proved the
transaction led to execution of Ext.P1 so as to entitle the
benefits of twin presumptions under Sections 118 and 139 of
the NI Act. But the trial court, mainly relied on the evidence of
DW1 and Ext.D8 in particular and found that the complainant
failed to explain as to why the complainant again advanced
another loan while an earlier loan was subsisting. According
to the learned counsel for the complainant, the subsistence
of earlier liability, repayment of interest and payment of
Rs.40,000/- as per Ext.D7 etc. would show that the accused
is a person prompt in repayment of the earlier transaction
and therefore, again he was given to Rs.1,25,000/-.
Therefore, the verdict under challenge would require
interference.
9. In view of the arguments advanced, the
questions arise for consideration are:
1. Whether the trial court wrongly acquitted the
accused on the finding that he did not commit
2025:KER:41828
CRL.A NO. 2231 OF 2008
the offence punishable under Section 138 of
the NI Act?
2. Whether the trial court verdict would require
interference?
3. Order to be passed?
10. In this case, PW1 deposed that the accused
borrowed Rs.1,25,000/- from the complainant, promising to
repay the same within two months. When the amount was
demanded back, the accused issued cheque dated
16.11.2004, drawn on State Bank of Travancore, Mavoor
Road Branch, in favour of the complainant. According to him,
when the cheque was presented for collection, the same got
dishonoured stating that "exceeds arrangement". He
deposed about issuance of legal notice and its acceptance
by the accused. Further he deposed about failure on the part
of the accused to repay same. It was through him, Ext.P1
cheque, Ext.P2 dishonour memo, Ext.P3 copy of legal notice,
Ext.P4 postal receipt and Ext.P5 acknowledgment card as
2025:KER:41828
CRL.A NO. 2231 OF 2008
well as Exts.D1 to D8 vouchers dated 03.09.2003,
16.10.2003, 05.12.2003, 03.03.2004, 26.03.2004,
22.06.2004 and 18.09.2004 were marked. During cross-
examination, PW1 admitted that there was payment as per
Exts.D1 to D8. Exts.D1 to D8 would show that payment of
Rs.3000/- on 03.09.2003, Rs.3,000/- on 16.10.2003,
Rs.3,000/-, on 05.12.2003, Rs.2000/- on 20.02.2004 and
Rs.1500/- on 03.03.2004. Ext.D6 would show payment of
Rs.12,500/- on 26.03.2004 and Rs.40,000/- on 22.06.2004
as per Ext.D7. Apart from that, as per Ext.D8, on 18.09.2004,
the complainant accepted Rs.2,000/- from the accused. In
support of Exts.D1 to D8 as well as Exts. D9 to D10, the
accused got examined as DW1. Thus the case advanced by
the complainant is receipt of Rs.1,25,000/- (Rupees one lakh
twenty five thousand only) by the accused during the month
of August 2004 and issuance of Ext.P1 cheque in discharge
of the said liability. But the case of the accused, as stated in
his written statement filed under Section 313 of Cr.P.C. as
2025:KER:41828
CRL.A NO. 2231 OF 2008
well as by his examination as DW1, is that during the year
2003, he had borrowed Rs.50,000/- from the complainant for
interest at the rate of 6% and thereafter, as per Exts.D1 to
D6, periodically interest was paid, and as per Ext.D7,
Rs.40,000/- out of the total amount of Rs.50,000/- also was
repaid, retaining Rs.10,000/- as balance. Ext.D10 is the copy
of reply notice sent by the accused as on 14.12.2004 on
receipt of Ext.P3 demand notice, wherein also, the contention
of the accused had been raised.
11. The trial court relied on the evidence of
DW1 and Exts.D1 to D12, to disbelieve the case of the
complainant that the accused borrowed Rs.1,25,000/- during
the 1st week of August, 2004 and it was found by the learned
Magistrate that on evaluation of the evidence, the case put
up by the accused, on the strength of Exts.D1 to D12, is
more probable and accordingly, the case of the complainant
is not proved. It is discernible from the narration in paragraph
No.9 of the trial court judgment that the trial court has given
2025:KER:41828
CRL.A NO. 2231 OF 2008
much emphasis to Ext.D8 voucher, admittedly issued by the
complainant on 18.09.2004 accepting Rs.2000/-. According
to the trial court, the complainant did not explain why he
issued Ext.D8 on 18.09.2004, while the liability, as alleged
now, had been subsisting. It was also observed by the trial
court that why the complainant advanced loan to the accused
again while an earlier liability was subsisting. The trial court
observed further that PW1 deposed that at the time when
he advanced loan to the accused, his wife, daughter-in-law
and two children were present, but none of them were
examined. Regarding the source, it was deposed by PW1
that the complainant obtained the money from his son-in-
law. The trial court also found that the complainant himself
had failed to prove the initial burden cast upon him so as to
get the benefits of twin presumptions and accordingly, the
accused was acquitted.
12. The crucial question to be decided is,
whether the reasons stated by the learned magistrate to
2025:KER:41828
CRL.A NO. 2231 OF 2008
record acquittal are justifiable in the facts of this case.
13. As evident from Exts.D1 to D8, the case put
up by the accused is that he borrowed Rs.50,000/- from the
complainant in the year 2003 for interest at the rate of 6%
and thereafter, he paid interest periodically upto 03.03.2004.
Thereafter, on 26.03.2004, Rs.12,500/- paid towards the
interest. Thereafter, on 22.06.2004 he paid Rs.40,000/-
towards the principal amount, keeping Rs.10,000/- as the
balance. But the case of the complainant is that the accused
borrowed Rs.1,25,000/- two months before the date of
issuance of Ext.P1 cheque. It is true that the previous
transaction between the accused and the complainant,
based on Exts.D1 to D8, was not denied by the
complainant. According to the learned counsel for the
complainant, prompt repayment by the accused is the reason
for advancing Rs.1,25,000/- while admittedly Rs.10,000/-
existed in the previous transaction. It is relevant to note that
2025:KER:41828
CRL.A NO. 2231 OF 2008
the trial court given much emphasis to Ext.D8, dated
18.09.2004, showing receipt of Rs.2,000/- by the complainant
from the accused after this transaction towards the previous
transaction and according to the learned Magistrate, the
same would show that there was only one transaction
between the accused and the complainant, for which Ext.P1
was issued as contended by the accused. It is true that even
though PW1 deposed that at the time of the transaction, his
wife, daughter-in-law and two children were present, none of
them were examined. In fact, the law does not mandate that
for each and every money transaction, there shall be
witnesses and they must be examined to prove the
transaction. A money transaction may takes place in the
absence of witnesses and such transaction could not be
disbelieved merely for the reason that there were no
witnesses to the transaction. Similarly, if somebody is also
present during a particular transaction, there is no necessity
always to examine witnesses also as a mandatory
2025:KER:41828
CRL.A NO. 2231 OF 2008
requirement. It is interesting to note that when the source
regarding the money alleged to be advanced by the
complainant to the accused involved in this case was asked,
he answered that he obtained the same from his son-in-law.
In the instant case, on evaluating the facts involved, what
could be inferred from the evidence of PW1, supported by
Exts.D1 to D8, is that there is one transaction in between the
complainant and the accused and a sum of Rs.10,000/- had
been outstanding. As pointed out, the case put up by the
complainant that he again advanced Rs.1,25,000/- to the
accused during the 1st week of August, 2004 while the earlier
transaction itself was not closed. On evaluating the
contentions raised by the complainant and the accused,
referring to the evidence adduced, I am not inclined to re-visit
the view taken by the learned Magistrate to disbelieve the
case of the complainant and to believe the case of the
accused. Therefore, I fully endorse the finding of the learned
Magistrate and the said finding does not require any
2025:KER:41828
CRL.A NO. 2231 OF 2008
interference.
In the result, this appeal fails and is dismissed
accordingly.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
