Kerala High Court
N.Murugan vs A.Radha on 26 September, 2025
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Crl. Appeal No. 1274/2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 26TH DAY OF SEPTEMBER 2025 / 4TH ASWINA, 1947
CRL.A NO. 1274 OF 2010
JUDGMENT DATED 04.05.2010 IN ST NO.286 OF 2009 OF CHIEF JUDICIAL
MAGISTRATE, PALAKKAD
APPELLANT/COMPLAINANT:
N.MURUGAN, S/O. LATE NATARAJU THARAKAN, 'NATARAJUBHAVAN',
CHINMAYANAGAR, PALLIPPURAM, PALAKKAD.
BY ADV SRI.P.K.MOHANAN (PALAKKAD)
RESPONDENTS/ACCUSED & STATE:
1 A. RADHA, W/O. RAJAN, ATHURKAVU,
UPUPADAM KINASSERY, PALAKKAD TALUK, PIN 678 707.
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SHRI.RAJESH SIVARAMANKUTTY
SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2025,
THE COURT ON 26.09.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 1274/2010
JOHNSON JOHN, J.
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Crl. Appeal No. 1274 of 2010
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Dated this the 26th 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.75,000/- from
the complainant on 20.09.2008 for business purpose and subsequently
when the complainant demanded the amount, cheque dated 20.02.2009
was issued to the complainant for Rs.75,000/- and thereafter, 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 P4 were marked and no evidence adduced
from the side of the accused.
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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. P. K. Mohanan (Palakkad), the learned counsel for
the appellant, Smt. Vijina K., the learned counsel representing the
learned counsel for the first respondent/accused and Smt. Hasnamol
N.S., the learned Public Prosecutor for the second respondent.
6. The learned counsel for the appellant argued that the accused
has not disputed the signature in the cheque and has not adduced any
defence evidence to rebut the statutory presumptions in favour of the
complainant and therefore, the trial court ought to have found that the
accused has committed the offence under Section 138 of the N.I. Act.
7. But, the learned counsel for the accused/first respondent
argued that the evidence of the complainant in cross examination would
clearly show that there was no financial transaction between the
complainant and the accused and the specific case of the accused is that
the husband of the accused borrowed Rs.5,000/- from the brother of the
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complainant, who is a financier and at that time, a blank cheque of the
accused was obtained as security and the same was misused by the
complainant for filing this case.
8. In cross examination, PW1 stated that he is not conducting any
finance business. But, he would say that Nataraj Finance is known to
him. According to PW1, he cannot say whether his brother, Babu, has
any connection with Nataraj Finance. When the learned counsel for the
accused challenged the financial capacity of the complainant for
advancing such a loan of Rs.75,000/- to the accused, PW1 only denied
the suggestion and not made any attempt to disclose his source. PW1
further denied the suggestion that the husband of the accused borrowed
Rs.5,000/- and at that time, a blank cheque was obtained from the
accused and the same was misused for filing this case.
9. The learned counsel for the respondent/accused pointed out
that in the complaint, it is specifically stated that the accused borrowed
money for business purpose. But, when the complainant was examined
as PW1, he stated that he advanced the loan as a friend of the accused.
There is nothing in the evidence of PW1 regarding the time and place of
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execution of Exhibit P1 cheque by the accused and PW1 has also not
disclosed his source for advancing the amount to the accused.
10. The decision of the Honourable Supreme Court in
M.S.Narayana Menon v. State of Kerala [(2006) 6 SCC 39], shows
that the nature of the standard of proof for rebutting the presumption
under Section 139 of the N.I Act is 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.
11. 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 it is well settled 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. 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:
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"(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.
(v) It is not necessary for the accused to come inthe witness
box to support his defence."
12. 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.
13. In ANSS Rajashekar v. Augustus Jeba Ananth [2019 (2)
KHC 155= 2019 (1) KLD 492], it was held that when evidence elicited
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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. It is pertinent to note that the trial court also observed that
Exhibit P1 cheque is seen filled in a different handwriting and ink when
compared with the signature of the accused in the cheque and also
found that the entries in the cheque and signature were not put
contemporaneously. It is well settled that so long as the view of the trial
court is a possible view, regardless of whether the appellate court can
take a different view, it is not justifiable for the appellate court to
interfere with the view reasonably formed by the trial court in cases
where acquittal is recorded by the trial court.
15. On a careful re-appreciation of the entire evidence in this
case, I find that the evidence of PW1 regarding the alleged transaction
relatable to the time and place of execution and issuance of the cheque
is not at all reliable.
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16. As noticed earlier, the complainant has not disclosed his
source for advancing the loan and further, the evidence of PW1 in cross
examination regarding his acquaintance with the accused does not tally
with the averments in the complaint and therefore, I find that the
evidence PW1 regarding the alleged transaction is not at all reliable and
in that circumstance, 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
