Kerala High Court
Koranil Yusaf vs V.A Firoz on 29 October, 2025
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Crl. Appeal No. 222/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 29TH DAY OF OCTOBER 2025 / 7TH KARTHIKA, 1947
CRL.A NO. 222 OF 2014
JUDGMENT DATED 30.09.2013 IN Crl.A NO.206 OF 2013 OF SESSIONS COURT,
KOZHIKODE
APPELLANT/COMPLAINANT:
KORANIL YUSAF, AGED 35 YEARS,
S/O.ABDULLA HAJI, KORANIL HOUSE, THIRUVALLUR P.O., VADAKARA
TALUK, KOZHIKODE
BY ADV SRI.T.G.RAJENDRAN
RESPONDENTS/ACCUSED/STATE:
1 V.A FIROZ, AGED 40 YEARS
S/O.ABDUL MAJEED, VALIYAKATH HOUSE, EDATHURUTHY P.O.,
MUKUNDAPURAM VIA, THRISSUR 680 703.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI. J.R. PREM NAVAZ
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2025, THE
COURT ON 29.10.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 222/2014
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'CR'
JOHNSON JOHN, J.
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Crl. Appeal No. 222 of 2014
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Dated this the 29th 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 borrowed Rs.3,75,000/- from
the complainant and subsequently issued a cheque for Rs.3,75,000/-
dated 13.12.2010 to the complainant in discharge of the debt.
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, PW1
examined and Exhibits P1 to P7 were marked and from the side of the
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accused, DWs 1 and 2 were examined and Exhibits D1 and D2 were
marked.
5. After trial and hearing both sides, the trial court convicted and
sentenced the accused under Section 138 of the N.I Act and against the
judgment of the trial court, the accused filed Crl. Appeal No. 206 of 2013
before the Sessions Court, Kozhikode. As per the impugned judgment
dated 30.09.2013 in Crl. Appeal No. 206 of 2013 of the First Additional
Sessions Judge, Kozhikode, the judgment of the trial court was set aside
and the accused was found not guilty of the offence under Section 138 of
the N.I Act and he was acquitted.
6. Heard Sri. T.G. Rajendran, the learned counsel for the
appellant, Sri. J.R. Prem Navaz, the learned counsel for the accused/first
respondent and Smt. Hasnamol N.S., the learned Public Prosecutor for
the second respondent.
7. The learned counsel for the appellant argued that the accused
has not disputed the signature in Exhibit P1 cheque and that the
Sessions Court ought to have found that the complainant is entitled for
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the benefit of the presumptions under Sections 139 and 118 of the N.I
Act.
8. The learned counsel for the accused/first respondent argued
that the complainant has not disclosed, when and where the original
transaction took place and as to when and where the accused executed
and issued the cheque, in the complaint or in the chief affidavit of PW1
and that the evidence of 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 and the evidence
of DWs 1 and 2 and Exhibits D1 and D2 would show that the case put
forward by the accused is more probable and therefore, there is no
reason to interfere with the findings in the impugned judgment.
9. It is stated in the complaint and the chief affidavit of PW1 that
the complainant and the accused were friends and that they were
working together abroad. According to the complainant, the accused
borrowed Rs.3,75,000/- for his business purpose in the presence of one
Aboobacker and subsequently, when the complainant demanded back
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the amount, the accused executed and issued Exhibit P1 cheque dated
13.12.2010 for Rs.3,75,000. But, it is pertinent to note that in the
complaint or in the chief affidavit of PW1, it is not stated, when and
where the complainant paid the amount to the accused and when and
where the accused executed and issued the cheque to the complainant.
10. In cross examination, PW1 admitted that Rs.3,75,000/- is a
big amount for him and he has no objection in producing documents to
show the withdrawal of the said amount from the Bank. In another part
of the cross examination, PW1 stated that the accused issued the cheque
either towards the end of November, 2010 or during the beginning of
December, 2010 and he cannot exactly remember the date of execution
and issuance of cheque by the accused. He denied the suggestion of the
defence that the accused has not issued Exhibit P1 cheque to him.
11. PW1 would say that he paid the money to the accused two
months prior to the receipt of the cheque from the accused. PW1
admitted that A.M Muhammed Shameem and Shoukkathali are known to
him. He also admitted that himself and Shoukkathali were in Gulf for
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about 10 years. However, PW1 denied the suggestion that the accused
borrowed 50,000 UAE Dirham from Shoukkathali during 2010 and
subsequently, the accused executed an agreement with Shameem, the
brother of Shoukkathali, and entrusted cheque bearing number '215652'
of the Federal Bank to the said Shameem and in spite of subsequent
payment to Shoukathali, the said cheque was not returned. He also
denied the suggestion of the defence that there was no financial
transaction between him and the accused and that the accused has not
issued any cheque to him.
12. The accused is examined as DW1 and he deposed that the
cheque was given to one Shameem, who is the brother of Shoukkathali,
as per the Exhibit D1, agreement, and that the details of the cheque are
mentioned in Exhibit D2 agreement. According to DW1, he is not aware
as to how the complainant obtained possession of the cheque given to
Shameem. In cross examination, DW1 denied the suggestion that
Exhibits D1 and D2 are fraudulently created for the purpose of this case.
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13. DW2, Muhammad Noufal, is the first witness in Exhibit D2 and
he identified his handwriting and signature in Exhibits D1 and D2 and
stated that the said transaction was in 2010. He also identified Exhibit P1
as the cheque handed over by the accused to Shameem. In cross
examination, DW2 stated that the complainant is not known to him.
14. The learned counsel for the appellant argued that nothing is
mentioned in Exhibit P7, reply notice, regarding Exhibits D1 and D2 and
only at the time of 313 questioning, the accused put forward a case that
Exhibit P1 cheque was entrusted to one Shameem, who is the brother of
Shoukkathali and since the accused has not disputed the signature in the
cheque, the Sessions Court ought to have presumed that the cheque
was issued as consideration for a legally enforceable debt, as held by the
Honourable Supreme Court in Kalamani Tex v. P. Balasubramanian
[(2021) 5 SCC 283] and this Court in Priyamvada K. v. M. Rahufina
and others [2024(1)KLT 417].
15. In Basalingappa v. Mudibasappa ((2019) 5 SCC 418), the
Hon'ble Supreme Court summarised the principles of law governing the
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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
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. 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.
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17. 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.
18. 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.
19. When considering 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
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execution and issuance of the cheque in the complaint or in his chief
affidavit.
20. The decision of the Honourable Supreme Court in Sanjabij
Tari v. Kishore S.Borcar [2025(6) KHC 250(SC)] shows that
ultimately it becomes 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 defence.
21. In the impugned judgment, it is observed that in spite of
challenge regarding the source and admission by PW1 in cross
examination that he can produce the bank records showing withdrawal
of the amount, no document is produced to prove the source of the
complainant for advancing Rs.3,75,000/- to the accused and that apart
from Exhibit P1 cheque, there is no other reliable evidence to show that
the complainant has advanced such a huge amount to the accused and
that even though it is stated in the complaint that one Aboobacker has
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witnessed the transaction, there was no attempt on the part of the
complainant to examine the said Aboobakcer.
22. It is well settled that 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 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.
23. On a careful re appreciation of the entire evidence, I find no
reason to disagree with the finding in the impugned judgment that the
evidence of DWs 1 and 2, Exhibits D1 and D2 and the evidence of PW1
in cross examination creates serious doubt about the existence of the
debt and the alleged execution and issuance of the cheque by the
accused to the complainant, especially in view of the fact that the
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number of Exhibit P1 cheque '215652' of the Federal Bank is seen
specifically recorded in Exhibit D2 receipt dated 05.01.2010. In that
circumstance, I find no reason to disagree with the findings in the
impugned judgment that that the accused has succeeded in rebutting
the statutory presumptions and that the complainant has not succeeded
in proving the 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
