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2025 DIGILAW 1637 (KER)

Ratheesh S. v. Joe Jacob

2025-06-11

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. This appeal is at the instance of the complainant in S.T.No.1929/2006 on the files of Judicial First Class Magistrate Court-I, Kottayam, challenging the judgment of acquittal dated 09.07.2008 in the said case. The 1 st respondent herein is the accused and the 2 nd respondent is State of Kerala. 2. I shall refer the parties in this appeal with reference to their status before the trial court as `complainant’ and `accused’ hereinafter for easy reference. 3. Heard the learned counsel for the complainant/accused and the learned Public Prosecutor in detail. 4. Perused the trial court records and the judgment under challenge. 5. The prosecution case emanated when the complainant filed a complaint before the trial court alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act by the accused. The case of the complainant is that the accused had issued cheque for Rs.50,000/- dated 07.03.2006 in discharge of his liability towards the complainant on the assurance of encashment. But when cheque was presented for collection, the same was dishonoured for want of funds. When legal notice of demand was issued, the same was returned unclaimed. 6. The trial court took cognizance of the matter and recorded evidence confined to that of PW1 and Exts.P1 to P6 on the sideuij of the complainant. 7. Even though after questioning the accused under Section313(1)(b) of Cr.P.C, opportunity was given to the accused to adduce evidence, no defence evidence was adduced. 8. On appreciation of evidence, the trial court found that mere putting of signature in a cheque leaf would not tantamount to drawing of a cheque and therefore preponderances of probabilities in this case were that the cheque leaf had been given as signed blank, as stated by the accused, when he borrowed Rs.10,000/- from the complainant. 9. While canvassing interference in the judgment impugned, it is pointed out by the learned counsel for the complainant that by the evidence of PW1 supported by Exts.P1 to P6, the complainant discharged the initial burden in the matter of transaction to the tune of Rs.50,000/- borrowed by the accused on 25.02.2006 from him after executing Ext.P1 cheque; and issuance of Ext.P1 for the discharge of the said amount. Therefore, the trial court should have given the benefit of presumptions under Sections 118 and 139 of the N.I Act in favour of the complainant. Therefore, the trial court should have given the benefit of presumptions under Sections 118 and 139 of the N.I Act in favour of the complainant. It is urged that for the above reasons the trial court verdict would require interference. 10. Repelling this argument, the learned counsel for the accused argued much to sustain the verdict of acquittal. The specific case of the accused is that on receipt of Rs.10,000/- from the complainant, the accused issued a blank cheque leaf to him. The said cheque leaf was misused by the complainant for the purpose of this case. Therefore, the trial court is justified in holding that the complainant failed to prove his case. Therefore, the acquittal doesn’t require any interference. 11. Upon the rival submissions, the points arise for consideration are: (i) Whether the trial court went wrong in holding that the accused did not commit offence under Section 138 of the N.I Act? (ii) Is it necessary to interfere with the verdict under challenge? (iii) Order to be passed? Point Nos.(i) and (ii) 12. The specific case of the complainant is that the accused borrowed Rs.50,000/- from him on 25.02.2006 and in discharge of the said sum, Ext.P1 cheque dated 07.03.2006 was issued by the accused. The further case of the complainant as deposed by him is that believing the words of the accused, he accepted the cheque and presented the same for collection, but the same was dishonoured for want of funds. He spoke about issuance of a legal notice, which was returned unclaimed and also reluctance on the part of the accused to repay the amount covered by the cheque. 13. Per contra, the case advanced by the accused is that he borrowed Rs.10,000/- from the complainant and issued a blank cheque leaf to him and the said cheque leaf was misused by the complainant. The trial court while disbelieving the case of the complainant, believed the case of the accused and held that mere putting of signature in a cheque leaf would not tantamount to drawing of a cheque. It was observed by the trial court further that the preponderances of probabilities in this case were that the cheque leaf had been given as a signed blank one, as stated by the accused and it was improbable that the accused would have given Rs.50,000/- to the complainant, without any special circumstance for doing so. It was observed by the trial court further that the preponderances of probabilities in this case were that the cheque leaf had been given as a signed blank one, as stated by the accused and it was improbable that the accused would have given Rs.50,000/- to the complainant, without any special circumstance for doing so. Further the complainant had not stated any circumstances prompting him to give Rs.50,000/- to the accused. Then it was found that the complainant could not prove the case against the accused beyond reasonable doubt. 14. In the decision of the Apex Court reported in [(2019 0 Supreme (SC) 126 : 2019 (1) KLT 598 : 2019 (1) KHC 774 : 2019 (1) KLD 420 )], Bir Singh v. Mukesh Kumar , where in paragraph Nos. 36 to 40 and 42, the Apex Court summarized the legal position as regards to the applicability of S.20, S.87 and S.139 of the NI Act, after referring the earlier decisions of the Apex Court reported in [( 2013 (1) SCC 177 )], MSR Leathers v. S. Palaniappan , [( 2008 (14) SCC 457 )], Southern Sales and Services v. Sauermilch Design and Handels GMBH , [( 2001 (6) SCC 16 )], Hiten P. Dalal v. Bratindranath Banerjee , [( AIR 1958 SC 61 )], State of Madras v. Vaidyanatha Iyer , [( 2005 (5) SCC 294 )], Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra , [( 2007 (1) SCC 70 )], Rajesh Ranjan Yada @ Pappu Yadav v. CBI through its Director , [( 2012 (13) SCC 375 )], Laxmi Dyechem v. State of Gujarat [( 2001 (8) SCC 458 )], K. N. Beena v. Muniyappan , [( 2012 (1) SCC 260 )], R. Vijayan v. Baby , [( 2009 (6) SCC 72 )], Raj Kumar Khurana v. State of (NCT of Delhi) , [( 2007 (12) SCC 714 )], John K. John v. Tom Varghese, [( 2008 (4) SCC 54 )], Krishna Janardhan Bhat v. Dattatraya G. Hegde and [( 1992 (1) SCC 489 )], State of Punjab v. Surinder Kumar . Paragraph Nos. 36 to 40 and 42 are extracted as under: 36. Paragraph Nos. 36 to 40 and 42 are extracted as under: 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under S.139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of S.138 of the Negotiable Instruments Act. 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S.20, S.87 and S.139, makes it amply dear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability, it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer, if the cheque is otherwise valid, the penal provisions of S.138 would be attracted. 38. if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. it is not the case of the respondent - accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent - accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under S.139 of the Negotiable instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. xxxx xxxx xxxx 42. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. xxxx xxxx xxxx 42. In the absence of any finding that the cheque in question was not signed by the respondent - accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant - complainant, it may reasonably be presumed that the cheque was filled in by the appellant - complainant being the payee in the presence of the respondent - accused being the drawer, at his request and/or with his acquiescence. The subsequent filing in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent - accused of the charge under S.138 of the Negotiable Instruments Act.” 15. In the instant case, the reasons stated by the trial court to negate the case of the complainant as stated in paragraph No.6 are extracted hereunder: “No ordinary person is expected to receive a cheque not filled before him unless there is any special circumstance warranting the same. The complainant has not stated any reason for receiving such a cheque already brought filled. The version of the complainant that the cheque had been brought filled is a circumstance supporting the defense version that the cheque leaf had been given as a signed blank one. No person can be considered to have drawn a cheque by issuing a signed blank cheque leaf. The term “cheque” is defined u/s 6 of the N.I Act as a Bill of Exchange drawn on a specified banker. The expression “Bill of Exchange” is defined u/s 5 of the Act as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum money to a certain person. The term “cheque” is defined u/s 6 of the N.I Act as a Bill of Exchange drawn on a specified banker. The expression “Bill of Exchange” is defined u/s 5 of the Act as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum money to a certain person. In other words, on a close examination, sections 5 and 6 would make it clear that a cheque should be an instrument in writing containing an unconditional order to pay a certain sum of money to a certain person. The name of the drawee and the amount should be definitely stated in the instrument to make it a cheque as defined under Section 6 of the Act. This aspect is made clear by the Hon’ble High Court of Kerala in paragraphs 34 and 35 of the judgment in Kamalammal v. C.K.Mohanan and another , 2006 (3) KLJ 95 .” 16. On perusal of the above reasoning, the same appears to be strange and hyper-technical. There is no mandate in law that while giving money to a person on the strength of issuance of a cheque or by executing a promissory note or by executing any other similar documents acknowledging the debt, there must be an independent witness or any other witnesses to prove the said transaction. That is to say, in the absence of witnesses also money dealings are legal. Similarly, there is no legal mandate that a cheque shall be in the handwriting of the payer itself. In the instant case, issuance of a cheque by the accused, admitting transaction to the tune of Rs.10,000/- is the case put in defense, without adducing any evidence to prove the same. Further there is no contention for the accused that the admitted liability also was discharged or no evidence to prove the discharge. When the complainant produced Ext.P1 cheque in original, on giving evidence that it was dishonoured for want of funds stating that the accused borrowed Rs.50,000/- and in repayment of the same, the cheque was issued, the trial court disbelieved the evidence of the complainant and believed the case of the accused without support of any evidence, ignoring the evidence given by PW1 and held that the case of the accused is more probable. In fact, evidence of PW1 supported by Exts.P1 to P6 are credible and sufficient enough to establish that the accused borrowed Rs.50,000/- from the complainant and executed Ext.P1 cheque to discharge the said liability. In such a case, the trial court wrongly appreciated the evidence and recorded acquittal. Therefore, the judgment would require interference. Point No.(iii) 17. In the result, the appeal succeeds and is allowed accordingly. The judgment under challenge stands set aside and the accused is convicted for the offence punishable under Section 138 of the N.I Act. He is sentenced to undergo simple imprisonment for a day till rising of court and to pay fine of Rs.1 lakh to the complainant. Fine, if realised, the same shall be given as compensation to the accused under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of four months. 18. The accused is directed to appear before the trial court to undergo the sentence at 11.00 a.m on 07.07.2025. On failure to do so, the trial court is directed to execute the sentence as per law without fail. Registry is directed to forward a copy of this judgment to the court concerned for information and compliance.