Kerala High Court
Shailappan vs Sabitha on 15 October, 2025
Crl.Appeal No.1869 of 2008 1
2025:KER:76636
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 15TH DAY OF OCTOBER 2025 / 23RD ASWINA, 1947
CRL.A NO. 1869 OF 2008
AGAINST THE ORDER/JUDGMENT DATED 14.08.2008 IN
Crl.L.P. NO.1106 OF 2008 OF HIGH COURT OF KERALA ARISING OUT
OF THE JUDGMENT DATED 25.09.2007 IN CC NO.96 OF 2006 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, KODUNGALLUR.
APPELLANT/COMPLAINANT:
SHAILAPPAN, AGED 49 YEARS,
S/O. MULLANGATHU KOCHURAMAN, METHALA VILLAGE,
KODUNGALLUR TALUK, WORKING AS, MANAGING PARTNER OF
POORNIMA FINANCE, LOKAMALESWARAM VILLAGE,
DESOM, KODUNGALLUR TALUK.
BY ADVS.SRI.V.M.KRISHNAKUMAR
SHRI.ABRAHAM J. KANIYAMPADY
SHRI.SANGEETH MOHAN
SMT.V.K.SANJANA KRISHNAN
RESPONDENTS/ACCUSED & STATE:
1 SABITHA, W/O. EYIDATH SIYAVUDDEEN,
ERIYAD VILLAGE, KODUNGALLUR TALUK, ERIYAD P.O.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R
R1 BY ADV SHRI.RANJAN SURESH
R2 BY SERNIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.10.2025, THE COURT ON 15-10-2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.1869 of 2008 2
2025:KER:76636
JOHNSON JOHN, J.
-----------------------------------------------
Crl.Appeal No.1869 of 2008
-----------------------------------------------
Dated this the 15th day of October, 2025.
J U D G M E N T
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 towards discharge of a
debt, the accused issued a cheque dated 19.12.2005
for Rs.1,00,000/- to the complainant. 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.
3. Before the trial court, from the side of
2025:KER:76636
the complainant, PW1 examined and Exhibits P1 to P7
were marked and from the side of the accused, DW1
examined and Exts.D1 and D2 were marked.
4. After considering the oral and documentary
evidence on record and hearing both sides, 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.Abraham.J.Kaniyampady, the
learned counsel representing the appellant on
record, Sri.Ranjan Suresh, the learned State Brief
representing the first respondent/accused and
Sri.Alex M.Thombra, the learned Senior Public
Prosecutor for the second respondent.
6. The learned counsel for the appellant
argued that the accused has not disputed the
signature in Exhibit P1 cheque and the findings in
2025:KER:76636
the impugned judgment that the accused has succeeded
in rebutting the statutory presumptions in favour of
the complainant is not legally sustainable.
7. The learned State Brief representing the
accused/first respondent argued that the complainant
has not disclosed the alleged date of execution and
issuance of 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 no document is
produced to show that the person, who signed the
complaint as Managing Partner of the complainant
Poornima Finance has authority to represent the
complainant.
8. A perusal of Ext.P1 cheque shows that the
payee is M/s.Poornima Finance. Even though PW1
claimed that he is the Managing Partner, no document
2025:KER:76636
is produced to prove the same. In cross examination,
PW1 stated that his wife and daughter are the other
partners of the firm and that he will produce the
documents in this connection. But no such document
is seen produced in this case. PW1 further admitted
that he is also conducting Poornima Jewellery.
According to PW1, the amount was borrowed as per
promissory note on 03-10-2005 by the accused along
with her father and brother. PW1 would say that the
accused executed and issued the cheque on 19-12-2005
and that he returned the promissory note to the
accused at that time. But immediately PW1 corrected
himself by saying that the promissory note was not
returned to the accused.
9. PW1 further stated in cross examination
that the accused purchased gold ornaments from the
Jewellery and that Ext.D1 dated 15-04-2005 is the
estimate in that connection. He also admitted that
2025:KER:76636
Ext.D2 account slip regarding the purchase of gold
ornaments by the accused is in his handwriting.
10. DW1 is the father of the accused and he
deposed that on 15-04-2005, he purchased gold
ornaments from the complainant's Jewellery for
Rs.1,56,208/-. According to DW1, he paid Rs.20,000/-
and for the balance amount he handed over a blank
cheque of the accused. DW1 stated that the marriage
of the accused was on 17-04-2005 and that
subsequently he paid Rs.40,000/- and old gold
ornaments worth Rs.34,000/-. In cross examination,
DW1 stated that it is not known to him whether the
complainant is conducting finance business. But
according to DW1, he has not borrowed any amount
from the complainant.
11. In M.S.Narayana Menon v. State of Kerala
[(2006) 6 SCC 39], the Hon'ble Supreme Court
considered the nature of the standard of proof for
2025:KER:76636
rebutting the presumption under Section 139 of the
N.I Act and it was held that if some material is
brought on record consistent with the innocence of
the accused, which may reasonably be true, even
though it is not positively proved to be true, the
accused would be entitled to acquittal.
12. 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
2025:KER:76636
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. "
13. 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.
14. In ANSS Rajashekar v. Augustus Jeba
2025:KER:76636
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.
15. 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.
2025:KER:76636
16. 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
execution and issuance of the cheque in the
complaint or in his chief affidavit.
17. The learned counsel for the appellant
relied on the decision of the Hon'ble Supreme
Court in Sanjabij Tari v. Kishore S.Borcar
[2025(6) KHC 250(SC)] and argued that the failure
of the accused to reply to the statutory notice
under Section 138 of the N.I Act leads to an
inference that there is merit in the version of
2025:KER:76636
the complainant and that the burden is on the
accused to prove that there was no existing debt
or liability as held by the Hon'ble Supreme Court
in M.M.T.C Ltd. v. Medchil Chemicals And Pharma
(P) Ltd. [2002 KHC 241].
18. The decision of the Hon'ble Supreme Court
in Sanjabij Tari's case (Supra) would clearly
shows 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. In the present
case, the trial court arrived at a finding that
the evidence of PW1 in cross examination and
Exts.D1 and D2 is sufficient to establish a
2025:KER:76636
probable defence to rebut the statutory
presumptions in favour of the complainant. As
noticed earlier, the evidence of PW1 in cross
examination clearly shows that he is also
conducting a jewellery and that DW1 has purchased
gold ornaments from his jewellery on 15-04-2005.
In Ext.D1 estimate, the name of DW1 Shamsu
Mathilakam is seen written and therefore, I find
that the accused has been able to cast a shadow
of doubt on the case presented by the appellant
and I find no reason to disagree with the finding
of the trial court that the complainant has not
succeeded in proving the execution and issuance of
Ext.P1 cheque by the accused in discharge of a
legally enforceable debt. On a careful
re-appreciation of the entire evidence, I find no
reason to interfere with the finding in the impugned
2025:KER:76636
judgment 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.
amk
