Kerala High Court
Santhosh vs Baiju on 30 October, 2025
1
Crl. Appeal No. 973/2014
2025:KER:81473
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 30TH DAY OF OCTOBER 2025 / 8TH KARTHIKA, 1947
CRL.A NO. 973 OF 2014
JUDGMENT DATED 14.08.2014 IN ST NO.81 OF 2013 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, VAIKOM
APPELLANT/COMPLAINANT:
SANTHOSH, AGED 35 YEARS,
S/O.SADASIVAN, THANTHODATH (H), THALAYOLAPARAMBU P.O.,
VADAYAR VILLAGE, VAIKOM, KOTTAYAM, PIN - 686 605.
BY ADV SRI.PRASUN.S
RESPONDENTS/ACCUSED AND STATE:
1 BAIJU, AGED 42 YEARS,
S/O.KUTTAPPAN, KOCHUPULIYKKATHARA (H), (ASWATHY NIVAS),
THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM, KOTTAYAM,
PIN - 686 505.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
R1 BY SRI. K. ARAVIND MENON, AMICUS CURIAE
R2 BY SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2025,
THE COURT ON 30.10.2025 DELIVERED THE FOLLOWING:
2
Crl. Appeal No. 973/2014
JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal No. 973 of 2014
---------------------------------------------------------
Dated this the 30th 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.1,00,000/-
from the complainant during the last week of October, 2012 and
subsequently, the accused issued cheque bearing number '75414' by
executing the same at the residence of the complainant in the presence
of witnesses.
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 P5 were marked and from the side of the
accused, DWs 1 and 2 were examined and Exhibits D1 to D6 were
marked.
5. After trial 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.
6. Heard Sri. Prasun S., the learned counsel for the appellant,
Sri. Aravind Menon, the Amicus Curiae representing the complainant 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 trial
court ought to have found that the complainant is entitled for the benefit
of statutory presumptions and the finding of the trial court that the
accused has succeeded in rebutting the statutory presumptions is not
legally sustainable.
8. The learned Amicus Curiae representing 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 the chief affidavit of PW1 and that the evidence of DWs 1
and 2 and Exhibits D1 and D2 would clearly show that the case put
forward by the accused is more probable and therefore, there is no
reason to interfere with the findings of the trial court in this regard.
9. PW1 is the complainant and the averments in the complaint are
reiterated in the chief affidavit. According to PW1, the accused borrowed
Rs.1,00,000/- during the last week of October, 2012 agreeing to repay
the same within one month and after one month, the accused reached
his house with Exhibit P1 cheque, wherein all particulars except the
signature, was already written and the accused signed the cheque before
him in the presence of witnesses and handed over the same to him.
10. In cross examination, PW1 admitted that the accused was
previously conducting a bakery. According to PW1, he has not conducted
any chitty. PW1 admitted that one Suresh Sharma is known to him and
that on the date of Exhibit P3 statutory notice, he also issued Exhibit D1
notice to Suresh Sharma. PW1 denied the suggestion that the accused
subscribed for a chitty conducted by him and that he obtained a signed
cheque from the accused at the time of advancing Rs.9,000/- to the
accused in the chitty transaction. PW1 admitted that Exhibit D2 is the
reply notice issued by Suresh to Exhibit D1 notice. PW1 would say that
there is no document to show that he was having money in his bank
account. PW1 denied the suggestion that he was not having the source
for advancing Rs.1,00,000. He also added that he is having sufficient
assets and money in his bank account.
11. The accused was examined as DW1 and he deposed that he
subscribed in a chitty conducted by the complainant and that the entries
in Exhibit D4 card is in the handwriting of the complainant. According to
DW1, after payment of the fourth instalment, he received Rs.9,000/-
and at that time, the complainant obtained his cheque and the signature
of his relative, Suresh Sharma, in a stamp paper. Subsequently, when
three instalments were due, the complainant approached him and took
one load of rubbles and 1 1⁄2 load of river sand as loan for the
construction of his house and thereafter, failed to return the same and
there occurred a difference of opinion between them in that connection.
In cross examination, DW1 denied the suggestion that the handwriting in
Exhibit D4 is not that of the complainant and that the complainant never
conducted any chitty.
12. DW2, Suresh Sharma, deposed that he is a relative of the
accused. The evidence of DW2 shows that he received Exhibit D1, lawyer
notice, from the complainant and Exhibit D2 is the reply notice issued by
him to the complainant. According to DW2, he never borrowed any
amount from the complainant and that he issued a signed stamp paper
and a signed paper to help the accused. The evidence of DW2 in cross
examination shows that he is the co-brother of the accused. DW2 denied
the suggestion that he borrowed Rs.1,00,000/- from the complainant
during October, 2012. He also denied the suggestion that he repaid the
amount to the complainant on receipt of Exhibit D1 notice.
13. It is pertinent to note that the complainant caused to issue
Exhibit P3 and Exhibit D1 notice on the same day through the very same
counsel to DWs 1 and 2 with more or less the same allegation of
borrowing Rs.1,00,000/- from the complainant. In the complaint, it is
stated that the accused issued a reply notice with false allegations and
the said reply notice received by the complainant is not seen marked in
evidence. The fact that the complainant received Exhibit D2 reply notice
from DW2, is not disputed.
14. In Exhibit D2, the allegation in Exhibit D1 notice that DW2
borrowed Rs.1,00,000/- from the complainant is denied and it is further
stated that the accused subscribed in a chitty conducted by the
complainant and in that connection, the complainant obtained a blank
cheque and signed blank stamp papers at the time of advancing
Rs.9,000/- to the accused. It is also stated in Exhibit D2 notice that the
complainant obtained one load of sand and one load of rubbles from the
accused in connection with the construction of the house of the
complainant and at that time, only three instalments of chitty were due
from the accused and thereafter, there was difference of opinion
between the accused and the complainant.
15. The learned counsel for the appellant argued that the accused
has not disputed the signature in the cheque and therefore, in view of
decision of 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], the trial
court ought to have presumed that the cheque was issued as
consideration for a legally enforceable debt.
16. 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
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. "
17. 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.
18. 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.
19. 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.
20. As noticed earlier, in this case, the complainant has not
disclosed the date of execution and issuance of the cheque in the
complaint or in the chief affidavit of PW1, and even though it is stated in
the complaint that the accused signed the cheque in the presence of
witnesses, no witness is examined from the side of the complainant to
prove the execution and issuance of the cheque by the accused to the
complainant.
21. The decision of the Honourable Supreme Court in Sanjabij
Tari v. Kishore S.Borcar [2025(6) KHC 250(SC)], would clearly show
that ultimately, it becomes the duty of the courts 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.
22. The evidence of PW1 in cross examination would show that his
evidence in chief examination regarding the alleged transaction relatable
to the time of execution and issuance of cheque is not at all reliable. It
is pertinent to note that the specific case of the accused is that he
subscribed in a chitty conducted by the complainant and at the time of
receiving Rs.9,000/- in connection with the chitty transaction, the
complainant obtained the cheque and that DW2, his co-brother, was a
guarantor in the said transaction and that the complainant also obtained
blank cheque and signed stamp papers from DW2.
23. 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. 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
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."
24. On a careful re-appreciation of the entire evidence, I find that
the view taken by the trial court is a possible view and that the case put
forward by the accused is more probable, especially in view of the
evidence of DWs 1 and 2 and Exhibits D1 to D4.
25. In that view of the matter, 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 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
