Kerala High Court
Virench Nath Rabindranath vs Bleseen K on 4 November, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
Crl.Appeal No.533/15 1
2025:KER:83287
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947
CRL.A NO. 533 OF 2015
AGAINST THE JUDGMENT DATED 30.01.2015 IN ST NO.759 OF 2012 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, THALASSERY
APPELLANT/COMPLAINANT:
VIRENCH NATH RABINDRANATH
AGED 45 YEARS, S/O.RABINDRANATH,
RESIDING AT "KEDARAM",
P.O.CHOKLI, THALASSERY TALUK,
KANNUR DISTRICT PIN-670 672.
BY ADV SRI.R.SURENDRAN
RESPONDENTS/ACCUSED & STATE:
1 BLESEEN K.
S/O.JAMES MATHEW,
RESIDING AT KUNNAPALLIL,
P.O.KIDANGOOR, KUMMANNOOR,
KOTTAYAM DISTRICT PIN-686 572.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY ADVS.
SRI. NOUSHAD K.A., PUBLIC PROSECUTOR
SRI.C.H.NITHIN
SRI.K.PRASAD
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD 29.10.2025,
THE COURT ON 04.11.2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.533/15 2
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BECHU KURIAN THOMAS, J.
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Crl.Appeal No.533 of 2015
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Dated this the 4th day of November, 2025
JUDGMENT
This appeal is preferred against the judgment dated 30.01.2015 in S.T.
No. 759 of 2012 on the files of the Judicial First Class Magistrate's Court,
Thalassery. By virtue of the impugned judgment, the accused in a proceedings
under section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act')
has been acquitted. Aggrieved by the said acquittal, the complainant has
preferred this appeal.
2. According to the appellant/complainant, the accused had borrowed an
amount of Rs.2,00,000/- and in satisfaction of the amounts so borrowed, he
issued a cheque for Rs.2,00,000/- bearing No.419334 drawn on the State Bank
of India, Kattakayam branch dated 13.01.2012. The said cheque when
presented for encashment, dishonoured for insufficiency of funds in the
account of the accused and subsequent to the statutory notice, which was not
responded to by the accused, the complaint was lodged.
3. In order to prove his case, the complainant examined himself as PW1
and marked Exhibit P1 to Exhibit P5 while the accused examined himself as
DW1 and other witness as DW2 and marked Exhibit D1. After analysing the
evidence adduced in the case, the learned Magistrate found the accused not
guilty and acquitted him.
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4. Sri. R. Surendran, the learned counsel for the appellant submitted
that the trial court went on a totally wrong tangent in appreciating the legal
principles that govern a proceeding under section 138 of the NI Act and had
also failed to appreciate the nature of evidence adduced. The learned counsel
also submitted that the trial court completely misdirected itself in failing to
bear in mind the presumption under section 139 of the NI Act and even after
finding that the cheque was issued by the accused, he was acquitted on the
basis of assumptions and surmises. According to the learned counsel, the
accused is guilty and he ought to be sentenced to the maximum.
5. I have heard the learned Public Prosecutor also. None represented
the accused despite several postings.
6. The complaint was filed under section 138 of the NI Act alleging
dishonour of a cheque issued to the complainant by the accused. The NI Act
enlists three essential conditions that ought to be fulfilled before a complaint
can be filed. The first requirement is that the cheque ought to have been
presented within the period of its validity followed by the second requirement
that a demand of payment ought to have been made by the payee or the
holder of the cheque to the drawer of the cheque. The third requirement is that
the drawer ought to have failed to pay the amount within 15 days of receipt of
the demand. The cause of action to file a complainant arises on the sixteenth
day after receipt of notice.
7. In the instant case, the statutory requirements for filing a complaint
under section 138 of the NI Act have been complied with. No infirmity can be
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noticed in filing the complaint. The accused, despite being served with the
statutory notice, failed to respond or repay the amount so due and it is
thereafter that the complaint was lodged.
8. The complainant alleged that the accused had borrowed Rs.2,00,000/-
and issued Exhibit P1 cheque in discharge of the said liability. The evidence of
PW1 reveals that the accused came to his house at Thalassery, borrowed the
amount and thereafter wrote the details on his cheque signed and handed it
over to the complainant. There is no dispute that the contents of the cheque
were written by the accused, which is evident from the deposition of DW1. In
fact, the trial court had found that the act of drawing, signing and issuing the
cheque had been admitted by the accused. The said finding is not under
challenge. Therefore it has to be held that the execution of the cheque is not
under dispute.
9. Despite finding that the accused had drawn, signed and issued the
cheque, as has been admitted by him, the trial court acquitted the accused on
the finding that the cheque was issued only as a security and not in discharge
of any liability. On a perusal of the nature of evidence adduced by DW1, it is
seen that the defence taken by the accused is that there was a partnership
arrangement between him and the complainant and he was asked to invest
Rs.2,00,000/- in the business and since he did not have sufficient funds to
make the said investment, a cheque was collected from him as a security.
Curiously, an e-mail was produced and marked as Exhibit D1 during the stage
of evidence of DW1, purporting it to be an e-mail sent by the complainant to
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the accused. The said e-mail was never put to the complainant nor was he
confronted with such an e-mail, when he was examined as PW1. Undue
reliance has been placed by the trial court on the said E-mail.
10. Further, on a perusal of Exhibit D1 e-mail, it is evident that the said
mail only requests the accused to send a cheque dated the first week of
January to the complainant. The said e-mail does not give any indication that
the same relates to the cheque in dispute in the instant case. Even otherwise,
the said e-mail cannot by itself, disprove or rebut the presumption available
under section 139 of the NI Act. Even the evidence of DW2 indicates that
during the above time, the accused had borrowed a sum of Rs.5,50,000/- from
DW2 himself and a dispute arose between them and he had to file a case for
recovery of the said amount.
11. The presumption under section 139 of the NI Act that the cheque was
issued in discharge of a debt or liability has not been rebutted by the nature of
evidence adduced by the accused or even by the principle of preponderance of
probabilities. The nature of evidence adduced by the complainant clearly
proves that the accused had issued the cheque in discharge of a debt. The
finding of the trial court that the cheque issued as a security will not come
within the purview of section 138 of the NI Act is incorrect. In a recent decision
in Dattatraya v. Sharanappa [(2024) 8 SCC 573] it was held, relying on the
decision in ICDS Ltd. v. Beena Shabeer and Another [(2002) 6 SCC 426],
that, proceedings under Section 138 of the NI Act can be initiated even if the
cheque was originally issued as security and was subsequently dishonoured
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owing to insufficient funds. The failure to honour the cheque concerned is per
se deemed as a commission of an offence under Section 138 of the NI Act.
Thus, the finding of the trial court to the contrary is incorrect.
12. In view of the above, the acquittal of the accused is wrong and the
said judgment is liable to be set aside.
13. As far as the sentence is concerned, the principles laid down in the
decision in Anilkumar v. Shammy [2002 (3) KLT 852] are relevant. It was
observed that normally in a successful prosecution under Section 138 of the
Negotiable Instruments Act a direction under Section 357 must follow unless
there are compelling reasons not to invoke the power under Section 357 of the
Criminal Procedure Code.
14. In the instant case, the cheque is of the year 2012 and a deterrent
sentence will not serve the object of the provision and hence a restoratory
direction is necessary in the interest of justice.
15. Accordingly, the judgment dated 30.01.2015 in S.T. No. 759 of 2012
on the files of the Judicial First Class Magistrate's Court, Thalassery is hereby
set aside and the accused is found guilty. A sentence of imprisonment till the
rising of the Court, apart from a compensation of Rs.3,00,000/- (Rupees Three
Lakhs only) under section 395(3) Bharatiya Nagarik Suraksha Sanhita, 2023
(for short 'BNSS') along with a default sentence has to be imposed.
Hence this Criminal Appeal is allowed as follows:
(a) The accused is found guilty for the offence under Section 138 of NI
Act.
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(b) The accused is sentenced to imprisonment till the rising of the Court .
(c) The accused is directed to pay a compensation of
Rs.3,00,000/- (Rupees Three Lakhs only) under section 395(3) of BNSS within
two months from today, in default of which, the accused shall undergo simple
imprisonment for a period of 3 months.
(d) The fine amount, when realised, shall be paid to the complainant as
compensation under Section 395(1) of BNSS.
(e) The trial court shall take appropriate steps to execute the sentence.
Registry shall transmit the records to the trial court forthwith.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
