Kerala High Court
A.K.Chandran vs Sreejith on 5 November, 2025
1
Crl. Appeal No. 1387/2008
2025:KER:84591
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 5TH DAY OF NOVEMBER 2025 / 14TH KARTHIKA, 1947
CRL.A NO. 1387 OF 2008
AGAINST THE ORDER DATED 07.07.2008 IN Crl.L.P. NO.521
OF 2008 OF HIGH COURT OF KERALA ARISING OUT OF THE JUDGMENT
DATED 28.02.2008 IN CC NO.230 OF 2006 OF CHIEF JUDICIAL
MAGISTRATE ,THALASSERY
APPELLANT/COMPLAINANT:
A.K.CHANDRAN, S/O. KELU,
PINALATTU KUNIYIL HOUSE,, KALLIKANDY, THOOVAKUNNU.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SHRI.GEORGE MATHEWS
RESPONDENTS/ACCUSED & STATE:
1 SREEJITH, S/O. KUMARAN,
SREE NIDHI HOUSE, AZHIYOOR,, KOZHIKODE.
2 STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR,, HIGH COURT OFKERALA,
ERNAKULAM.
BY ADV SHRI.K.P.HAREENDRAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.11.2025, THE COURT ON 05.11.2025 DELIVERED THE FOLLOWING:
2
Crl. Appeal No. 1387/2008
2025:KER:84591
JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal No. 1387 of 2008
---------------------------------------------------------
Dated this the 5th day of October, 2025
JUDGMENT
This appeal by the complainant is against the acquittal of the
accused under Section 138 of the Negotiable Instruments Act, 1881 ('N.I
Act' for short).
2. As per the complaint, the accused owed an amount of
Rs.3,00,000/- to the complainant and towards discharge of the said
debt, the accused issued a cheque dated 04.03.2006 for Rs.3,00,000/-
to the complainant.
3. When the complainant presented the cheque for collection, the
same was dishonoured due to insufficiency of funds in the account of the
accused and in spite of issuance of statutory notice, the accused failed to
pay the cheque amount to the complainant.
4. Before the trial court, from the side of the complainant, PWs 1
and 2 were examined and Exhibits P1 to P6 and Exhibits X1 and X2
were marked. From the side of the accused, DW1 examined.
2025:KER:84591
4. After hearing both sides and considering the oral and
documentary evidence on record, the trial court found that the
complainant has not succeeded in proving the offence under Section
138 of the N.I Act against the accused and hence, the accused was
acquitted.
5. Heard Sri. Pranoy K. Kottaram, the learned counsel
representing the learned counsel for the appellant on record, Sri. K.P
Hareendran, the learned counsel for the accused/first respondent and
Sri. Alex M. Thombra, the learned Senior Public Prosecutor for the
second respondent.
6. The learned counsel for the appellant argued that the trial court
ought to have found that the complainant is entitled for the benefit of
the statutory presumptions under Sections 118 and 139 of the N.I Act.
It is also argued that the accused has not succeeded in rebutting the
statutory presumptions.
7. The learned counsel for the accused/first respondent argued
that the complainant has not disclosed the date of execution and
issuance of the cheque in the complaint or in the statutory notice or in
2025:KER:84591
the chief affidavit of PW1 and that the evidence PW1 in cross
examination regarding the alleged transaction does not tally with the
averments in the complaint. It is also argued that the evidence of PW1 in
cross examination would clearly show that the case put forward by the
accused is more probable.
8. In cross examination, PW1 stated that he was conducting a
super market in Muscat and that he had occasion to see the accused in
Muscat at that time. PW1 denied that along with others, he conducted a
chitty in Muscat. He would say that the accused was residing at a
distance of half kilometre from his shop and that the accused was
employed in a construction company there. However, PW1 would say
that he paid Rs.3,00,000/- to the accused while he was in his house in
his native place and regarding the source, PW1 stated that he has
withdrawn Rs.2,00,000/- from the Syndicate Bank and he also used the
amount received in a chitty for advancing the loan of Rs.3,00,000/- to
the accused on 10.09.2005.
2025:KER:84591
9. When a specific suggestion was made to PW1 that the
signature and other writings in the cheque are in different ink, his
response was that he cannot say the same. PW1 stated that he has not
conducted any enquiry as to whether the accused is now operating the
said account. However, he denied the suggestion that the accused was
not operating the said account for the last 15 years. PW1 denied the
suggestion that he obtained possession of the cheque while he was
abroad. He also denied the suggestion that the accused never issued
Exhibit P1 cheque to him.
10. The Manager of the Syndicate Bank, Mahi branch is examined
as PW2 and he deposed that the cheque was dishonoured for the reason
'funds insufficient' as per Exhibit P2 memo. The accused is examined as
DW1 and he deposed that he never borrowed any amount from the
complainant or issued any cheque to the complainant. According to
DW1, the signature and handwriting in Exhibit P1 is not his signature
and handwriting. According to DW1, he was residing with PW1 in the
same room while they were in Muscat. He stated that he was working in
a construction company as a helper and PW1 was conducting a
2025:KER:84591
business. DW1 stated that PW1 conducted a chitty there and he owed
money to several persons and during that time, PW1 has taken away his
two cheque leaves and no amount was due from him to the complainant.
11. In cross examination, DW1 stated that he returned to his
native place during 2001 and PW1 returned to the native place six
months before he reached. According to DW1, they together conducted
the chitty and he came to know about the cheque only after the filing of
this case.
12. The learned counsel for the accused/first respondent pointed
out that a perusal of Exhibit P1 cheque would clearly show that the same
was of the period prior to 2000, as it is printed in the top right hand side
where the date is to be written as ....19..... It is pointed out that in
Exhibit P6 reply notice, the transaction alleged in the complaint is totally
denied and also stated that the accused and the complainant jointly
conducted a private chitty business in Muscat and at that time, the
complainant got possession of two blank cheques of the accused.
2025:KER:84591
13. In ANSS Rajashekar v. Augustus Jeba Ananth [2019 (2)
KHC 155= 2019 (1) KLD 492], it was held that when evidence elicited
from complainant during cross examination creates serious doubt about
the existence of debt and about the transaction and the complainant fails
to establish the source of funds, the presumption under Section 139 is
rebutted and the defence case stands probabilised.
14. In APS Forex Services Pvt. Ltd. v. Shakti International
Fashion Linkers and Others [2020 (1) KHC 957 = 2020 (1) KLD
313], it was held that whenever the accused questioned the financial
capacity of the complainant in support of his probable defence despite
the presumption under Section 139 onus shifts again on the complainant
to prove his financial capacity.
15. In Basalingappa v. Mudibasappa ((2019) 5 SCC 418), the
Hon'ble Supreme Court summarised the principles of law governing the
presumptions under Sections 118 and 139 of the N.I Act in the following
manner:
"(i) Once the execution of cheque is admitted Section 139 of
2025:KER:84591
the Act mandates a presumption that the cheque was for
the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely
on evidence led by him or accused can also rely on the
materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to
the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139
imposed an evidentiary burden and not a persuasive
burden. "
16. It is well settled that the standard of proof which is required
from the accused to rebut the statutory presumption under Sections 118
and 139 of the N.I Act is preponderance of probabilities and that the
accused is not required to prove his case beyond reasonable doubt. The
standard of proof, in order to rebut the statutory presumption, can be
inferred from the materials on record and circumstantial evidence.
17. The decision of the Honourable Supreme Court in John K.
Abraham v. Simon C. Abraham and Another [2013 (4) KHC 853]
2025:KER:84591
shows that in order to draw the presumption under Section 118 read
along with 139 of the N.I Act, the burden was heavily upon the
complainant to have shown that he had required funds for having
advanced the money to the accused, while issuing cheque in favour of
the complainant.
18. On careful re-appreciation of the evidence in this case, on the
basis of the above legal principles, it is apparent that there existed a
contradiction in the complaint moved by the appellant as against his
cross examination relatable to the time of execution and issuance of the
cheque, especially in view of the fact that the complainant has not
disclosed the date of execution and issuance of the cheque in the
complaint or in his chief affidavit.
19. It is the duty of the court to consider carefully and appreciate
the totality of the evidence and then come to a conclusion whether, in
the given case, the accused has shown that the case of the complainant
is in peril for the reason that the accused has established a probable
2025:KER:84591
defence, as held by the Honourable Supreme Court in Sanjabij Tari v.
Kishore S.Borcar [2025(6) KHC 250(SC)].
20. It is pertinent to note that the specific case of the accused is
that he was residing with the complainant in the same room while they
were in Muscat and that they were conducting a chitty there and it was
at that time, the complainant took possession of the cheque from the
accused. The evidence of PW1 in cross examination shows that he had
acquaintance with the accused while they were in Muscat. Even though,
PW1 denied residing with the accused in the same room in Muscat, he
admitted that the accused is his relative. The evidence of PW1 in cross
examination would show that his evidence in chief examination
regarding the alleged transaction, execution and issuance of the cheque
is not at all reliable.
21. The offence made punishable under Section 138 of the N.I Act
is a regulatory offence for improving the credibility of negotiable
instruments and therefore, the test of proportionality should guide the
construction and interpretation of the statutory presumptions and the
2025:KER:84591
accused cannot be expected to discharge an unduly high standard of
proof. Therefore, if the accused is able to raise a probable defence,
which creates doubts about the existence of a legally enforceable debt or
liability, the prosecution can fail. In Chandrappa v. State of
Karnataka [(2007) 4 SCC 415], the Honourable Supreme Court laid
down the general principles regarding the powers of the appellate court
while dealing with an appeal against an order of acquittal in paragraph
42 of the said judgment as follows:
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate
court while dealing with an appeal against an order of acquittal
emerge:
(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling
reasons", "good and sufficient grounds", "very strong
circumstances", "distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of an appellate court
2025:KER:84591
in an appeal against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court."
22. On a careful re-appreciation of the entire evidence, I find that
the evidence elicited from the complainant during cross examination
creates serious doubt about the existence of debt and about the
transaction and I find that the view taken by the trial court is a possible
view and therefore, I find no reason to interfere with the finding of the
trial court that the accused has succeeded in rebutting the statutory
presumptions and that the complainant has not succeeded in proving the
2025:KER:84591
offence under Section 138 of the N.I Act against the accused. Therefore,
I find that this appeal is liable to be dismissed.
In the result, this appeal is dismissed.
Sd/-
JOHNSON JOHN,
JUDGE.
Rv
