Kerala High Court
Sarala vs State Of Kerala And Another on 23 September, 2025
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Crl. Appeal No. 410/2011 2025:KER:70791
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 23RD DAY OF SEPTEMBER 2025 / 1ST ASWINA, 1947
CRL.A NO. 410 OF 2011
JUDGMENT DATED 14.10.2010 IN CC NO.184 OF 2007 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, CHERTHALA
APPELLANT/COMPLAINANT:
SARALA, AGED 55 YEARS, W/O. AYYAPPAN,
CHIRAPPURATHUVEEDU,C.S.P-9,CHERTHALA SOUTH,, MAYITHARA.P.O,
CHERTHALA.
BY ADVS.
SRI.BINU PAUL
SRI.SHAJI THOMAS PORKKATTIL
SRI.T.V.VINU
RESPONDENTS/STATE & ACCUSED:
1 STATE OF KERALA, REPRSENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM-682 031.
2 SABITHA, AGED 32 YEARS, D/O.DHANWANTHARAN
VADAKKECHKIRAPPURATHU, WARD NO.1, KANJIKUZHY, PANCHAYATH,
MAYITHARA.P.O,CHERTHALA, ALAPPUZHA-688 539.
BY ADV SHRI.J.OM PRAKASH
SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2025, THE
COURT ON 23.09.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 410/2011 2025:KER:70791
JOHNSON JOHN, J.
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Crl. Appeal No. 410 of 2011
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Dated this the 23rd day of September, 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.37,000/- from
the complainant and issued cheque dated 12.08.2006 for Rs.37,000/-.
Subsequently 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 the complainant, PW1
examined and Exhibits P1 to P6 were marked and from the side of the
accused, DW1 examined and Exhibits 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 no
consistent case and that the evidence of the complainant in cross
Crl. Appeal No. 410/2011 2025:KER:70791
examination creates serious doubt regarding the existence of debt and
the transaction and held 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. Gautham B. Baburaj, the learned counsel
representing the learned counsel for the appellant on record, Sri. Majeed
V.P., the learned counsel reprsenting the learned counsel for the second
respondent/accused and Smt. Hasnamol N.S., the learned Public
Prosecutor for the first respondent.
6. The learned counsel for the appellant argued that the accused
has not disputed the signature in the cheque and therefore, the trial
court ought to have found that the complainant is entitled for the
benefit of the presumptions under Sections 139 and 118 of the N.I Act.
7. But, the learned counsel for the accused/second 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
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regarding the alleged transaction does not tally with the averments in
the complaint.
8. In cross examination, PW1 stated that she cannot remember
the date on which the accused borrowed the money. She would say that
there was no transaction with the accused other than the transaction
mentioned in the complaint. According to PW1, she has not advanced
loan to any person other than the accused. But, subsequently, in cross
examination, PW1 admitted that the father of the accused has borrowed
Rs.20,000/- from her and thereafter, he transferred 10 cents of property
in her favour. According to PW1, when she advanced money to the
father of the accused, she has not obtained any cheque. But, instead she
obtained a document from the father of the accused.
9. Even though, PW1 initially stated that apart from this
complaint, there is no other case, she admitted the pendency of O.S. No.
243 of 2008 before the Munsiff's Court, Alappuzha. She also admitted in
cross examination that when she advanced Rs.37,000 to the accused,
Rs.20,000/- was due to her from the father of the accused. The evidence
of PW1 in cross examination shows that the Deputy Superintendent of
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Police directed her to return the document and subsequently when the
accused issued a cheque, she returned the document. In cross
examination, PW1 deposed as follows:
"അതിനു ശേഷം പ്രതി ഒരു cheque എഴുതി എന്റെ വീട്ടിൽ കൊണ്ടു
തന്നപ്പോൾ ഞാൻ പ്രമാണം തിരികെ കൊടുത്തു. Dy.SP Office ൽ വച്ച്
എടുത്ത തീരുമാനത്തിന്റെ അടിസ്ഥാനത്തിലല്ലെ അപ്രകാരം പ്രമാണം തിരികെ
കൊടുത്തത്. Cheque എന്റെ വീട്ടിൽ കൊണ്ട് തന്നപ്പോൾ തിരികെ കൊടുത്തു
(A) ഞാൻ Dy.SP office ൽ വച്ച് എനിക്കുണ്ടാകുന്ന നഷ്ടത്തെപ്പറ്റി പറഞ്ഞില്ല.
Dy.SP office ൽ വച്ച് cheque വാങ്ങി പ്രമാണം കൊടുക്കാൻ
തീരുമാനമായതിന്റെ അടിസ്ഥാനത്തിലാണോ അപ്രകാരം ചെയ്തത് (Q) Dy.SP
office ൽ ഒരു തീരുനാമവും എടുത്തില്ല (A) Cheque മായി വന്നാൽ ആധാരം
തിരികെ തരാമെന്ന് എന്റെ വീട്ടിൽ വച്ചാണ് ഞാൻ പറഞ്ഞത്. ആധാരം കിട്ടാൻ
വേണ്ടിയാണൊ cheque വാങ്ങിച്ചത് (Q) ഞാൻ മുൻപു കൊടുത്ത പണം
തിരികെ കിട്ടാൻ വേണ്ടി cheque വാങ്ങി(A)."
10. The case put forward by the accused is that her father
borrowed Rs.20,000/- from the complainant after executing an
agreement for the sale of 10 cents of property as security for due
payment and by entrusting the original title deed and at that time, the
complainant also obtained a blank signed cheque of the accused as
additional security. It is the case of the accused that the complainant
failed to return the original documents even after re-payment of the
amount borrowed by her father and hence, she filed a complaint before
the Deputy Superintendent of Police, Cherthala. The Deputy
Superintendent of Police, Cherthala is examined as DW1. The copy of the
Crl. Appeal No. 410/2011 2025:KER:70791
petition preferred by the accused to the Deputy Superintendent of Police
is marked as Exhibit D1. The copy of the entry in the petition register
regarding Exhibit D1 petition is marked as Exhibit D2.
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 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
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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.
(v) It is not necessary for the accused to come inthe witness
box to support his defence."
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
Crl. Appeal No. 410/2011 2025:KER:70791
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. 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 NI Act is preponderance of probabilities and that the accused
is not required to prove his case beyond reasonable doubt.
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 her case in cross
examination relatable to the nature of the transaction, time of execution
and issuance of the cheque.
17. As noticed earlier, PW1 had admitted in cross examination
that the father of the accused borrowed Rs.20,000/- and also executed a
document for transferring 10 cents of property in her favour and
subsequently she returned the document after receiving a cheque from
the accused. The evidence of DW1 and Exhibits D1 and D2 also shows
that the financial transaction was between the complainant and the
Crl. Appeal No. 410/2011 2025:KER:70791
father of the accused. The evidence of PW1 in cross examination
probabilise the version of the defence, especially in view of the fact that
the complainant has not disclosed the nature of the transaction, the date
of execution and issuance of cheque in the complaint or in the chief
affidavit of PW1 and therefore, I find no reason to interfere with the
finding in the impugned 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.
Rv
