Kerala High Court
Shabir Ali vs S.Ramesh on 5 June, 2025
CRL.A NO. 732 OF 2013
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2025:KER:39523
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
THURSDAY, THE 5 DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
CRL.A NO. 732 OF 2013
AGAINST THE JUDGMENT IN Crl.A NO.861 OF 2011 DATED 01.03.2012 ON THE FILE
OF THE COURT OF SESSIONS, KOZHIKODE DIVISION, AS AGAINST THE JUDGMENT IN
CC NO. 281/2011 DATED 01.12.2011 ON THE FILE OF THE SPECIAL JUDICIAL
FIRST CLASS MAGISTRATE COURT (MARAD CASES) KOZHIKODE.
APPELLANT/RESPONDENT/COMPLAINANT:
SHABIR ALI
S/O. ABDUL LATHEEF, MUNDIYODINILAM, NEAR QUALITY BRICKS,
CIVIL STATION P.O., KOZHIKODE.
BY ADV SRI.ABDUL RAOOF PALLIPATH
RESPONDENTS/APPELLANT/ACCUSED & STATE:
1 S.RAMESH
AGED 45 YEARS, S/O. GOPALAKRISHNAN, ABHISHEKAM, PULPARAMBU,
POKKUNNU P.O., NEAR KUNNATH BAGAVATHY TEMPLE, KOZHIKODE -
673 013.
2 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
BY ADV SRI.T.G.RAJENDRAN
OTHER PRESENT:
PP ADV SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2025, THE
COURT ON 05.06.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 732 OF 2013
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2025:KER:39523
A. BADHARUDEEN, J
============================
Crl appeal No. 732 of 2013
==============================
Dated 05th day of June 2025
JUDGMENT
The complainant in C.C. No. 281 of 2011 on the files of the Special Judicial First Class Magistrate Court (Marad cases), Kozhikode, has filed this appeal under Section 374 of the Code of Criminal Procedure, challenging the judgment in Crl.Appeal No.861 of 2011 dated 01.03.2012 on the files of the Sessions Court, Kozhikode Division arising from judgment in C.C. No. 281 of 2011 dated 01.12.2011 on the files of the Special Judicial First Class Magistrate Court, Kozhikode. CRL.A NO. 732 OF 2013 3 2025:KER:39523
2. The 1st respondent is the accused before the trial court and the appellant before the Sessions court. The 2nd respondent is the State of Kerala.
3. Heard the matter in detail. Perused the records and the judgments rendered by the trial court as well as the appellate court.
4. For effective and easy discussion, the parties in this appeal will be referred to as 'complainant' and 'accused' hereafter. Short facts:-
5. On dishonour of cheque dated 09.04.2011 for Rs.2,75,000/- drawn on Punjab National Bank issued by the accused in favour of the complainant for a legaly enforceable debt, the complainant lodged complaint before the trial court alleging CRL.A NO. 732 OF 2013 4 2025:KER:39523 commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the NI Act").
6. The trial court recorded evidence confined to that PW1 and Exts.P1 to P7 on the side of the complainant. Even though opportunity was provided to the accused to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C., he did not adduce any evidence. On appreciation of evidence, learned Magistrate found that the accused was guilty for the offence punishable under Section 138 of the NI Act, and accordingly, he was sentenced to undergo imprisonment till rising of the court, and to pay compensation of Rs.2,75,000/-, and sixty days default imprisonment for non payment of compensation also was imposed.
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7. The accused challenged the verdict of the trial court before the court of Session, Kozhikode, as per judgment dated 01.03.2012 in Crl. Appeal No. 861 of 2011, the appellate court reversed the said finding and acquitted the accused.
8. While supporting the judgment of the trial court and impeaching the veracity of the finding of the appellate court, the learned counsel for the complainant argued that in this matter, the accused and the complainant are friends and worked together in the Orange Offset printing press, Kozhikode. While so, the accused demanded some amount for the treatment of his father and also to clear his debt. Accordingly, the complainant given Rs.2,75,000/- on 10.06.2010, and the accused executed Ext.P1 agreement dated 10.06.2010 acknowledging the said amount. CRL.A NO. 732 OF 2013 6 2025:KER:39523 Later, Ext.P2 cheque dated 09.04.2011 for Rs.2,75,000/- of Punjab National Bank also was issued in discharge of the said liability. It is argued by the learned counsel for the complainant that the complainant examined himself as PW1 and proved the transaction that led to the execution of Ext.P2 cheque as well as Ext.P1 agreement. Thus on appreciation of evidence, the trial court convicted the accused, but the appellate court acquitted the accused on finding lacuna in the evidence of PW1, in a case where PW1 was not even effectively cross-examined to dispute the transaction. According to the learned counsel for the complainant, mere failure to deny the suggestion that the entries in the cheque were made by the complainant is the sole reason whereby the appellate court found that the case of the CRL.A NO. 732 OF 2013 7 2025:KER:39523 complainant was not proved by PW1. According to the learned counsel for the complainant, the appellate court did not correctly appreciate the evidence where twin presumptions under Sections 118 and 139 of the NI Act is available in favour of the complainant. Therefore, the judgment of acquittal rendered by the appellate court negating the finding of the trial court is patently wrong, and the same would require interference.
9. Whereas the learned counsel for the accused supported the verdict of the appellate court and opposed the verdict of the trial court, relying on the evidence of PW1. It is argued by the learned counsel for the accused that in this matter, the accused borrowed Rs.1,15,000/- and repaid Rs.1 lakh. While Rs.15,000/- was pending as balance, the complainant demanded huge amount by CRL.A NO. 732 OF 2013 8 2025:KER:39523 way of interest. Thereafter, he misused the blank cheque issued by the accused while receiving Rs.1,15,000/- for the purpose of this case. It is also pointed out that on receipt of legal notice of demand, the accused issued Ext.P7 reply disclosing these aspects. That is the reason why during cross-examination PW1 failed to deny the suggestion that the cheque was filled up by him. He also submitted that PW1 deposed that one Abdul Gafoor was present during the transaction. But he was not examined to prove the case of the complainant. Therefore, the 1st appellate court rightly found that the evidence of PW1 did not inspire confidence to be acted upon. Therefore the finding of the appellate court is only to be confirmed holding that the complainant failed to prove CRL.A NO. 732 OF 2013 9 2025:KER:39523 the transaction led to execution of Ext.P2 cheque as well as Ext.P1 agreement.
10. Addressing the contentions, the points that arise for consideration are as follows:-
1. Whether the appellate court is justified in reversing the finding of the trial court that the accused committed offence punishable under Section 138 of the NI Act, holding that the complainant failed to prove the transaction led to execution of Ext.P2 cheque and Ext.P1 agreement?
2. Is there any interference required in the judgment of the appellate court?
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3. The order to be passed?
Point Nos. 1 & 2:-
11. In this matter, the complainant got examined as PW1 and he deposed in tune with the averments in the complaint.
According to him, the accused is familiar with him and he is one of his friends and they worked together in Orange offset printing press. While so, the accused demanded Rs.4 lakh for the purpose of the treatment of his father and to clear his loan liability, since he informed that if not the accused had to commit suicide. Then the complainant offered to give some money after selling his property, which was proposed to be sold by the time. Later on 10.06.2010, the accused borrowed Rs.2,75,000/- from the complainant at the Orange Offset printing press and acknowledging the said receipt CRL.A NO. 732 OF 2013 11 2025:KER:39523 of money, the accused executed Ext.P1 agreement. Later, he issued Ext.P2 cheque for Rs.2,75,000/- on 09.04.2011 to discharge his liability with the assurance of encashment. The cheque was when presented for collection, the same was dishonoured for the reason 'funds insufficient'. He also deposed that the dishnour of the cheque was intimated to the accused by registered lawyer's notice, but the accused failed to repay the same even on acceptance of notice, though he issued Ext.P7 reply notice. Ext.P1 agreement dated 10.06.2010, Ext.P2 the cheque dated 09.04.2011 for Rs.2,75,000/- of Punjab National Bank, Ext.P3 dishonour memo dated 09.04.2011, Ext.P4 copy of lawyer's notice, Ext.P5 postal receipt dated 26.04.2011 Ext.P6 postal acknowledgement card and Ext.P7 reply notice dated 12.05.2011 were marked through PW1. CRL.A NO. 732 OF 2013 12 2025:KER:39523 PW1 was cross-examined with limited questions. Regarding Ext.P1, it was suggested that the same was forged by the complainant, and the said suggestion was denied by PW1. No more questions asked suggesting creation of Ext.P1 in any other manner. Another suggestion was made to PW1 to the effect that the entries in the cheque were in the handwriting of the complainant., he did not either admit or deny the same, but the answer was that the cheque was signed and given by the accused. It is true that he did not deny the handwriting on the cheque as that of his own. The 1st appellate court in paragraph No.9 observed that PW1 had no case that accused signed in Ext.P1 document in his presence, where no serious cross-examination effected, challenging Ext.P1 rather than mere suggestion that it CRL.A NO. 732 OF 2013 13 2025:KER:39523 was a forged document. Non-examination of independent witness also is a reason found by the appellate court to hold that the complainant failed to prove his case. For these reasons, the learned sessions judge found fault with the complainant's case and negated the finding of the trial court.
12. This is a case in which the complainant put up a case that, the accused, being his friend, in dare need of money, demanded some amount from him for the treatment of his father and to clear his debt on the assertion that otherwise he had no option other than to commit suicide. Accordingly, the accused borrowed Rs.2,75,000/- and executed Ext.P1 agreement acknowledging the same. Regarding Ext.P1, the only suggestion during cross-examination is that it was a forged document. Regarding CRL.A NO. 732 OF 2013 14 2025:KER:39523 Ext.P2 also the accused denied the liability as well as the execution of Ext.P2. Apart from that, no effective cross-examination carried out. It is relevant to note that the issuance of cheque is admitted by the accused for a transaction to the tune of Rs.1,15,000/-, and out of which, admittedly, Rs.15,000/- yet to be discharged. Even though repayment of Rs.1 lakh out of the money admittedly borrowed by the accused had been alleged, no evidence forthcoming to substantiate the said plea of discharge. In such a case, the appellate court approached the matter in a most hypertechnical manner by giving much emphasis on the evidence of PW1 on the premise that PW1 did not deny the suggestion as to his handwriting in the cheque, and also the entries in the cheque were put in black ink, and the signature is in blue ink. CRL.A NO. 732 OF 2013 15 2025:KER:39523
13. In this connection, it is relevant to refer the decision of the Apex Court 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 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 CRL.A NO. 732 OF 2013 16 2025:KER:39523 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. 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.
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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 CRL.A NO. 732 OF 2013 18 2025:KER:39523 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. 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 CRL.A NO. 732 OF 2013 19 2025:KER:39523 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 unfiled 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.
14. Insofar as the legal position as regards to the issuance of blank cheque is concerned, the same is well settled and espoused in Bir Singh's case (supra). Thus, even a blank cheque leaf, voluntarily signed and handed over by the drawer/payer, which is towards some payment, would attract presumptions under S.118 CRL.A NO. 732 OF 2013 20 2025:KER:39523 and S.139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt or legal liability. In fact, law does not mandate that a cheque shall be in the handwriting of the drawer/payer. On the contrary, a cheque can be written by anybody other than drawer/payer, and the only mandate of law is that holder in due course/payee has to prove the transaction and execution of the cheque to impose criminal culpability on the drawer/payer. In view of the above legal position, merely because the cheque was written by another person, instead the drawer himself, whether he is capable of writing himself or otherwise, would not make the cheque invalid or the prosecution case untrustworthy. Similarly mere omission to deny the suggestion that the cheque was written by the CRL.A NO. 732 OF 2013 21 2025:KER:39523 complainant also is not a reason to disbelieve the case of the complainant. In such cases also, when the transaction and execution of the cheque is proved by evidence, presumptions under S.118 and S.139 of the NI Act would squarely apply.
15. In the instant case, the evidence of PW1, which led to transaction to the tune of Rs.2,75,000/- and execution of Ext.P1 cheque and Ext.P2 agreement, were not even put to effective cross examination and in such a case the appellate court went wrong in holding that the evidence of PW1 was insufficient to prove the case of the complainant. In fact the trial court rightly appreciated the evidence and recorded the conviction. Since the reason given by the appellate court to set aside the conviction imposed by the trial CRL.A NO. 732 OF 2013 22 2025:KER:39523 court are not justifiable, it is necessary in the interest of justice to interfere with the judgment of the appellate court.
16. In the result, this appeal stands allowed and the judgment of acquittal rendered by the Trial Court stands set aside. Consequently, the accused is convicted for the offence punishable under S.138 of the NI Act and he is sentenced to undergo simple imprisonment for a period of one day till rising of the Court and to pay fine of Rs.3,25,000 (Rupees Three Lakh twenty-five Thousand Only). Fine shall be given as compensation to the complainant under S.357(1)(b) of CrPC. In default of payment of fine, the accused shall undergo default imprisonment for a period of 8 months. The accused is directed to surrender before the Trial Court to undergo the modified sentence positively at 11.00 a.m on CRL.A NO. 732 OF 2013 23 2025:KER:39523 02.07.2025 and on failure to do so, the Trial Court is directed to execute the modified sentence imposed by this Court, without fail.
Registry is directed to forward a copy of this judgment to the Trial Court for information and compliance, within seven days from the date of receipt of a copy of this judgment.
Sd/-
A.BADHARUDEEN, JUDGE
RMV