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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
Vishnu Prasad, S/O. Santhakumari – Petitioner
Versus
Gracy Yohannan And Ors. – Respondents
CRL.A NO. 1216 of 2013
Decided On : 04-06-2025
(A) Code of Criminal Procedure, 1973 - Section 378(4) - Negotiable Instruments Act, 1881 - Section 138 - Appeal against acquittal - Complainant alleged that accused dishonored cheque for Rs.3 Lakh - Trial court convicted accused, but Appellate Court acquitted - Court found trial court's appreciation of evidence correct, emphasizing the presumption of validity of the cheque under Section 139 of the NI Act - The Appellate Court's reasoning was deemed insufficient. (Paras 6, 12, 20, 21)
(B) Burden of Proof - The complainant has the initial burden to prove the transaction leading to the cheque's issuance, and the presumption under Sections 118 and 139 of the NI Act applies unless rebutted by the accused. (Paras 12, 17)
Facts of the case:
The complainant lent Rs.3 Lakh to the accused, who issued a cheque that was dishonored. The trial court convicted the accused, but the Appellate Court acquitted her, leading to this appeal. (Paras 4, 6)
Findings of Court:
The trial court's conviction was upheld, finding that the complainant proved the transaction and the cheque's validity was not rebutted. (Paras 20, 21)
Issues: Whether the Appellate Court erred in acquitting the accused and whether the complainant proved the cheque's issuance for the transaction. (Paras 11, 12)
Ratio Decidendi: The court ruled that the Appellate Court misapprehended the evidence and the presumption of validity of the cheque under Section 139 was not rebutted by the accused. (Paras 20, 21)
Result: Appeal allowed; judgment of acquittal set aside; accused convicted and sentenced. (Para 22)
JUDGMENT
This appeal has been filed under Section 378 (4) of the Code of Criminal Procedure, 1973 , with the leave of this Court, challenging the judgment of acquittal rendered by the learned Additional Sessions Judge-II, Kollam in Crl. Appeal No.94 of 2012 dated 17.06.2013, after setting aside the judgment of conviction for the offence under Section 138 of the Negotiable Instruments Act, 1881 [hereinafter referred as ‘NI Act’ for short] imposed by the Judicial First Class Magistrate Court-IV, Punalur in C.C. No.103 of 2009 dated 20.03.2012. The appellant herein is the complainant and the 1st respondents is the accused in C.C. No.103/2009. The 2nd respondent herein is the State of Kerala.
2. Heard the learned counsel for the appellant, the learned Public Prosecutor and the learned counsel appearing for the 1st respondent, in detail. Perused the verdict under challenge and the records of the trial court.
3. Parties in this appeal shall be referred as ‘complainant’ and ‘accused’ hereafter.
4. The case of the complainant is that, the accused borrowed Rs.3 Lakh from him on 19.08.2008 and promised to repay the same on 19.09.2008. Accordingly, the accused issued cheque for the said sum dated 19.09.2008 drawn on State Bank of Travancore, Kulathuppuzha Branch. When the cheque was presented for collection, the same got dishonored for want of funds. Although, legal notice was issued to the accused intimating dishonor and demanding payment of the cheque amount, she failed to pay the amount.
5. The trial court took cognizance for the offence punishable under Section 138 of the NI Act and proceeded with trial. PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant. After examination of the accused under Section 313(1)(b) of Cr.P.C , DW1 was examined on the side of the accused.
6. On appreciation of evidence, the trial court found that the accused committed the offence punishable under Section 138 of the NI Act. Accordingly, she was sentenced to undergo simple imprisonment for a period of three months and to pay compensation to the tune of Rs.3,25,000/-. In default, the accused was sentenced to undergo simple imprisonment for three months more. But on appeal, the Appellate Court reversed the said finding and acquitted the accused. Now, the finding of the Appellate Court is under challenge.
7. While assailing the judgment of acquittal rendered by the first Appellate Court, it is argued by the learned counsel for the appellant/complainant that, the complainant himself got examined as PW1 and he deposed about the transaction, which led to execution of Ext.P1 cheque. According to the learned counsel for the appellant/complainant regarding the source of money to advance Rs.3 Lakh to the accused, during cross-examination, the complainant deposed that he sold properties belonged to him during the year 2007 and 2008, though he failed to remember the name of the purchaser/vendee. It is pointed out that, however, one Rahim, who is the purchaser of the properties from PW1 was summoned and examined by the accused as part of defence evidence as DW1 and he supported the purchase of properties from the complainant, having an extent of 55 cents and 88 cents, supporting the version of PW1. Therefore, the trial court rightly appreciated the evidence and entered into conviction. But, the Appellate Court wrongly re-appreciated evidence, mainly on the premise that the complainant was not aware as to who filled up the cheque; whether it was by the accused or anybody under his instructions. It is pointed out by the learned counsel for the appellant/complainant that the reasoning given by the Appellate Court to set aside the trial court judgment is insufÏcient and erroneous. Therefore, the same may be set aside and the trial court judgment may be restored.
8. The learned counsel for the appellant/complainant placed decision of the Apex Court reported in [2024 5 Supreme 235 : 2024 0 Supreme (SC) 521 : 2024 0 KLT (OnLine) 1279] K. Ramesh v. K. Kothand
The presumption of validity of a cheque under Section 139 of the NI Act remains unless the accused provides cogent evidence to rebut it.
The presumption of validity of a cheque under Section 139 of the NI Act remains unless the accused provides cogent evidence to rebut it.
The court reaffirmed that the burden of proof lies on the accused to disprove the presumption of liability under Section 139 of the Negotiable Instruments Act.
The court emphasized that the presumption under Section 139 of the NI Act requires the accused to rebut the claim that a cheque was issued in discharge of a debt, regardless of who filled it out.
A signed cheque establishes a presumption of liability; the accused must provide evidence to rebut this presumption to avoid conviction under Section 138 of the Negotiable Instruments Act.
The presumption under Sections 118 and 139 of the NI Act requires the accused to prove that the cheque was not issued in discharge of a debt, and mere suggestions during cross-examination do not suff....
The presumption under Sections 118 and 139 of the NI Act requires the accused to prove that the cheque was not issued in discharge of a debt, and mere suggestions during cross-examination do not suff....
The burden of proof lies on the complainant to establish the existence of a legally enforceable debt and the execution of the cheque, especially when the accused denies the transaction.
The burden of proof, legal presumptions, and the accused's admission of debt in the issuance of the cheque are crucial in determining liability under the Negotiable Instrument Act.
Presumption of legally enforceable debt arises upon admission of cheque by the accused; failure to rebut results in liability for cheque dishonor.
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