Kerala High Court
Kavitha.N.V vs Sunilkumar on 23 January, 2026
2026:KER:6182
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
CRL.REV.PET NO. 591 OF 2019
AGAINST THE JUDGMENT IN Crl.A NO.181 OF 2018 OF SESSIONS
COURT, KOZHIKODE ARISING OUT OF THE JUDGMENT IN ST NO.735/2016
OF SPECIAL COURT OF JUDICIAL FIRST CLASS MAGISTRATE (N.I.ACT
CASES, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED:
KAVITHA.N.V, AGED 31 YEARS
W/O. RAJESH.A.P., KAVITHA HOUSE, KURAVANGAD P.O.,
KOYILANDI, KOZHIKODE, KERALA 673 620.
BY ADVS.
DEVIKA MANOJ (AMICUS CURIAE)
SRI.G.RANJU MOHAN
SMT.M.SANTHI (K/868/2011)
SHRI.JETHIN P.
RESPONDENTS/RESPONDENT/COMPLAINANT:
1 SUNILKUMAR, AGED 34 YEARS
S/O. VELAYUDHAN, MANAGING PARTNER, SURYA CHITS
CORPORATION, ROOM NO. 42, VYABARABHAVAN, BANK ROAD,
KOZHIKODE RESIDING AT THAZHAKATH HOUSE, CHEVAYUR
P.O., KOZHIKODE 673 017.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH CO RUT OF KERALA, ERNAKULAM 682 031.
BY ADV SRI.R.BINDU (SASTHAMANGALAM)
SMT.MAYA M N-PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING
ON 15.01.2026, THE COURT ON 23.1.2026 DELIVERED THE FOLLOWING:
Crl.R.P.No.591 of 2019 2
M.B.SNEHALATHA, J
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Crl.R.P.No.591 of 2019
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Dated this the 23rd of January, 2026
ORDER
In this revision petition filed by the accused, she assails the judgment of conviction and order of sentence against her for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I Act).
2. The parties shall be referred to as the complainant and accused as before the trial court.
The case of the complainant is that the accused who was a subscriber of a chit conducted by the complainant bearing No.GV 278 having a sala of ₹6,82,500/-, auctioned the said chit and received the chit amount agreeing to repay the future subscriptions. But the accused failed to repay the future subscriptions in the chit as agreed. When the complainant demanded the amount due, the accused issued Ext.P1 cheque for an amount of ₹3,90,000/- in discharge of the said liability. On presentation of Ext.P1 cheque for encashment, it was returned dishonoured due to insufficient funds in the account of the accused. Upon receipt of dishonour memo from the bank, the complainant caused Crl.R.P.No.591 of 2019 3 to send Ext.P3 lawyer notice. Inspite of Ext.P3 notice, accused failed to pay the amount covered by the cheque and thereby committed the offence under Section 138 of N.I.Act.
3. Accused pleaded not guilty to the accusation and denied her liability to pay any amount. It was contended that the complainant misused the signed blank cheque issued by her by way of security.
4. After trial, the learned Magistrate found the accused guilty under Section 138 of N.I Act and she was convicted and sentenced to pay a fine of ₹3,90,000/- and in default of payment of fine, to undergo simple imprisonment for a period of four months. It was also ordered that if the fine amount is realized, the same shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C.
5. Challenging the conviction and sentence, though the accused preferred appeal as Crl.A No.181/2018 before the Sessions Court, Kozhikode, the same was dismissed by the learned Sessions Judge, confirming the conviction and sentence.
6. On account of the absence of the counsel who filed the revision petition, this Court appointed Advocate Ms.Devika Manoj as amicus cu- riae to assist the court.
7. Revision petitioner/accused assails the conviction and sentence against her on the ground that the trial court and the appellate court have not appreciated the evidence in its correct perspective. It was Crl.R.P.No.591 of 2019 4 contended that the blank cheque as issued by her to 'Surya Chits Corporation' in the year 2014 by way of security was misused by the complainant. It was further contended that there is no legally enforceable debt and therefore no presumption under Section 139 of N.I.Act can be drawn. It was also contended that the complainant has no locus standi to file the complaint; that the complainant failed to produce any document to show that he was the managing partner of 'Surya Chits Corporation'. Further it was contended that Ext.P6 statement of accounts produced by the complainant is not reliable or sufficient to prove the alleged liability. The learned amicus curiae contended that the judgment of conviction and order of sentence against the accused is liable to be set aside on the above grounds.
8. Admittedly, Ext.P1 is a cheque drawn on the account maintained by the accused at Syndicate Bank, Koyilandi Branch and it bears her signature. Accused would admit that she had issued a blank cheque as security to 'Surya Chits Corporation'. Accused has no case that she was not a subscriber of the chit bearing No.G.V.278 conducted by the 'Surya Chits Corporation'. She would admit that she was a subscriber of the said chitty conducted by 'Surya Chits Corporation'. Exts.P7 and P8 namely the agreement dated 31.3.2014 and receipt dated 31.3.2014 would show that the accused who auctioned the said chit received the kuri amount. Accused has no dispute over Exts.P7 and Crl.R.P.No.591 of 2019 5 P8. She has no case that she has not received the kuri amount mentioned in Exts.P7 and P8. Thus it stands established that the accused, who was the subscriber of the said chit, auctioned the said chit and received the chit amount as alleged by the complainant.
9. PW1 has testified that he is the Managing Partner of 'Surya Chits Corporation; that an amount of ₹3,90,000/- was due from the accused towards the said chit transaction. PW1 has testified that after granting a certain discount, the amount due from the accused was ₹3,90,000/- for which accused issued Ext.P1 cheque. Though she would dispute the correctness of Ext.P6 statement of account produced by the complainant, she has no specific case as to what was the amount due from her to the complainant. Except the contention that Ext.P6 is not a correct statement, she failed to adduce any evidence to show what was the amount due from her in the said chitty transaction. Though the accused would contend that Ext.P1 cheque was given by way of security, she failed to substantiate the said contention by acceptable evidence. There is absolutely no evidence to show that she delivered a blank cheque to the complainant and it was misused by the complainant, as alleged. Per contra, the evidence on record would show that the accused issued Ext.P1 cheque for the amount due to the complainant. Though the accused would contend that PW1 has no locus standi to institute the complaint, it is to be borne in mind that in Ext.P7 executed Crl.R.P.No.591 of 2019 6 by the accused at the time of receiving the chit amount, it has been specifically stated that the complainant Sunil Kumar is the Managing Partner of M/s.Surya Chits Corporation. Moreover, at the time when PW1 was examined, no challenge was made as regards to his version that he is the Managing Partner of 'Surya Chits Corporation'.
10. The presumption under Section 139 N.I Act entails an obligation on the court to presume that the cheque in question was issued by the drawer or accused in discharge of a debt or liability. Of course, it is a rebuttable presumption. It is also a settled position of law that the standard of proof for doing so is that of preponderance of probabilities. Accused has not succeeded in rebutting the said presumption. For rebutting the presumptions under Section 118(a) and 139 of N.I.Act accused has to lead credible evidence. Mere denial of the case of the complainant is not sufficient to shift this burden on the complainant.
11. In Kalamani Tex (M/s) and another v. P.Balasubramanian reported in [(2021) 5 SCC 283], the Hon'ble Apex Court observed as follows:
"Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn Under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."Crl.R.P.No.591 of 2019 7
12. In Rangappa v. Sri.Mohan reported in AIR 2010 SC 1898, the Hon'ble Apex Court held that the presumption mandated by Section 139 of N.I.Act includes a presumption that there exists a legally enforceable debt or liability. This is of course a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. It was also held that in view of Section 139 of N.I Act there is an initial presumption, which favours the complainant.
13. Accused failed to rebut the presumption under Section 139 of the NI Act. Per contra, the complainant has succeeded in establishing that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt. Ext.P5 would show that the registered notice sent to the accused was returned as 'unclaimed'. The endorsement in Ext.P5 would show that in spite of the intimation, accused failed to accept the notice. Therefore, the same is presumed to have been served upon the accused. In spite of service of notice, accused failed to repay the amount covered by Ext.P1 cheque. The evidence on record would show that Ext.P1 cheque issued by the accused to the complainant in discharge of her liability to pay an amount of ₹3,90,000/- was dishonoured for insufficient funds in her account and in spite of Ext.P3 notice, accused failed to pay the amount covered by Ext.P1 cheque. Crl.R.P.No.591 of 2019 8
14. Hence, I find no reason to interfere with the finding rendered by the learned Magistrate and the learned Sessions Judge that the accused has committed the offence punishable under Section 138 of the N.I Act. The concurrent finding of conviction and sentence against the accused for the offence under Section 138 of N.I.Act do not require any interference.
The revision petition is devoid of any merit and accordingly, it is dismissed.
Revision Petitioner is granted time upto 23.2.2026 for remitting the fine before the trial court. If the fine amount is not paid on or be- fore 23.2.2026, the trial court shall take steps to execute the sentence.
Registry shall transmit the records to the trial court forthwith.
Sd/-
M.B.SNEHALATHA JUDGE ab