Appeal against acquittal under Section 138 NI Act dismissed. The High Court held that the accused successfully rebutted the statutory presumption by raising a probable defence, showing inconsistencies in the complainant's evidence regarding financial capacity and the date of transaction, thereby upholding the trial court's acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 18TH DAY OF DECEMBER 2023 / 27TH AGRAHAYANA,
1945
CRL.A NO. 1172 OF 2019
AGAINST THE JUDGMENT DATED 03.09.2019 IN ST NO.774 OF 2016
OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA
PETITIONER/ COMPLAINANT:
JOJO SCARIA,
AGED 43 YEARS
S/O SCARIA, CHIRAYATHU HOUSE, MOONNANI BHAGAM,
PALA, KOTTAYAM DISTRICT.
BY ADV.
ARUN CHANDRAN(K/000575/2008)
RESPONDENTS / ACCUSED AND STATE:
1M.V JOSEPH (PAPPACHAN),
AGED 72 YEARS
S/O VARKEY, MANIKOMBEL HOUSE, THIDANADU KARA,
KALAKETTY P.O.
KOTTAYAM DISTRICT-686 508.
2THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682 031.
BY ADV.
SRI.P.C.HARIDAS
SRI. DENNY DEVASSY (PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
22.11.2022, THE COURT ON 18.12.2023 DELIVERED THE FOLLOWING:
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MARY JOSEPH, J.
Dated this the 18th day of December, 2023
JUDGMENT
The appeal on hand is originated from a judgment passed by Judicial First Class Magistrate Court, Pala (for short ‘the trial court’) in S.T.No.774/2016, which is a prosecution launched by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’). By the judgment referred to, the trial court found the accused not guilty of the offence punishable under Section 138 NI Act and acquitted him under Section 255(1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). He was set at liberty after cancelling the bail bond executed by him.
The complainant is the son-in-law of the accused. The
accused borrowed a sum of `30,00,000/- from the
complainant for meeting the travelling expenses of his son.
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Towards the discharge of the said liability, the accused had drawn a cheque on Federal Bank Ltd., Aruvithura Branch for that amount and issued to the complainant on 07.08.2011. The borrowal of the amount as well as the issuance of the cheque were taken place at the residence of the complainant. The cheque was presented by the complainant for collection through State Bank of India, Pala Branch, but it was bounced for the reason insufficiency of funds in the account of the accused. The complainant caused a registered legal notice to be issued to the accused. The notice was received by the accused but neither a reply was sent nor the money covered by the cheque was paid. Alleging that the accused has committed an offence under Section 138 NI Act, a private complaint was filed under Section 142 NI Act and thus the prosecution against him was launched.
the accused from the court and on appearance, he was released on bail after furnishing the copies of all relevant
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records on him. Particulars of the offence were read over and explained to him for which, he pleaded not guilty, and faced trial.
branch of Federal Bank Ltd. as PW2 and through him the account opening form of the accused with the bank was
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marked as Ext.P8. The Manager of Kizhathadiyoor Service Co-operative Bank was examined as PW3. He deposed that the accused had availed a loan of `10,00,000/- from the bank, on 01.08.2011. He produced documents showing various proceedings relating to that loan and marked in evidence as Exts. P36 to P42.
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she deviated from her earlier statement and deposed that the
entries and signature in Ext.P1 were put in black ink.
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had at New Zealand as well as Australia were produced by him and marked in evidence as Exts.D6 to D11. According to him he had paid money to the complainant on various occasions. Admittedly 47 cents of property was also purchased by him at Cherpunkal in the year 2011. He had also purchased 1½ acres of property at Ezhamchery in the year 2013. His wife was also working as a nurse in New Zealand since 2006 and she has also shifted her work to Australia. According to him, money was never demanded by him from the complainant for the purpose of migration as pleaded by the latter. According to him he had no occasion for the same.
In Sanil James v. State of Kerala and Another
2022 (6) KHC 278 relied on, it has been held,
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“15. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under S.118 and S.139 of the N.I. Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities.”
In P.Rasiya v. Abdul Nazer and Another [2022 SAR
( Crl ) 970 ], it has been held by the Apex Court.
“As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the
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Crl.A. No. 1172 of 2019
cheque, in that case, it is for the accused to prove the contrary.”
In Triyambak S. Hegde v. Sripad [2021 (5)
KHC 563 SC] , it was held by the Apex Court :
“From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P6 and P2 is not disputed. Exhibit P2 is dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the Courts below a presumption would arise under S.139 in favour of the appellant who was the holder of the cheque. Since the signature on the agreement (Exhibit P6) and more particularly the dishonoured cheque (Exhibit P2) was not disputed, the presumption as provided in law had arisen. Such presumption would remain till it is rebutted.”
It has been held further :
“Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the respondent, the presumption for passing of the consideration would arise as provided under S.118(a) of N.I Act. The above noted provisions are explicit to the effect that such presumption would remain, until the contrary is proved.”
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The Apex Court in the case also distinguished its view in Basalingappa v. Mudibasappa [2019 (2) KHC 451] and
held :
“In Basalingappa v. Mudibasappa (supra) relied on
by the learned counsel for the respondent, though on facts the ultimate conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to presumption arising under S.118 and S.139 of N.I. Act on signature being admitted has been reiterated. Hence, whether there is rebuttal or not would depend on the facts and circumstances of each case. ”
In Bhupesh Rathod v. Dayashankar Prasad
Chaurasia and Another [2021 (6) KHC 368] , the Apex
Court held :
“We must say at the inception that the respondent not having disputed his signatures on the cheques, it was for the respondent to show in what circumstances the cheques had been issued, i.e, why was it not a cheque issued in due course. The words of S.139 of the NI Act are quite clear that unless the contrary is proved, it shall be presumed that the holder of the cheque received the
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cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability. The respondent has not set up a case that the nature of transaction was of the nature which fell beyond the scope of S.138. Other than taking a technical objection, really nothing has been said on the substantive aspect”.
In Sameti Vij v. M/s. Paramount Tech Fab
Industries [2021 (2) KHC 658] the Apex Court held:
“16. It is well settled that the proceedings under S.138 of the Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act.
In Mathew K.John v. State of Kerala and Another
2021 (1) KHC 232 , it was held by this court :
“During examination under S.313(1)(b) Cr.P.C the plea specifically taken by the 2nd respondent was that a chitty subscribed with the complainant was bid by him and a cheque was given as security for the prize money. According to him though the chitty was bid and a cheque
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was given as security, the prize money was not disbursed to him. PW1 was not questioned by the accused with reference to the subscription of chitty with his father and the bid of it by him. The accused did not enter into the box also to depose about the version. Therefore, accused failed to establish the transaction as pleaded by him or in other words, he has thoroughly failed to rebut the presumption either by bringing forth preponderance of probabilities in the evidence of PW1 or by adducing affirmative evidence in defence. In the aforesaid circumstances, the complainant can only be taken as successfully established the execution of the cheque.”.
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accused by examining his witnesses and marking the documents is more probable than that advanced by the complainant.
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451 SCC) was relied on by the learned counsel for the accused to contend that when the financial capacity of the complainant was questioned, it is incumbent on him to have it established satisfactorily.
“It was brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the
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complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.”
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“(i) Once the execution of cheque is admitted S.139 of the Act mandates a presumption that the cheque was issued for the discharge of any debt or other liability.
(ii) The presumption under S.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, S.139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.”
Narayan Dass Mahant (2022 (2) KLT 1123 (SC)), wherein it was held by the Apex court:-
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“ The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.”
The Apex Court held furthermore :-
“It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts
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of each case on the conspectus of evidence and circumstances that exist.”
In the backdrop of the rival contentions raised by the complainant and the accused, the facts and the evidence adduced are required to be re-appreciated.
The complainant is the son in law of the accused. The accused borrowed a sum of `30,00,000/- from the complainant for meeting the travelling expenses of his son, abroad. It was alleged that the accused issued a cheque drawn on Aruvithura branch of Federal Bank Ltd. and given to the complainant. The entire transactions were pleaded as taken place from the house of the complainant and at the time of issuance of the cheque, the accused made the complainant to believe that the cheque would be honoured on presentation. The cheque was presented by the complainant for collection, but was dishonoured and returned back from State Bank of India, Pala branch for insufficiency of funds in
the account maintained by him. A registered legal notice was
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caused to be issued by the complainant to the accused, which was received by him, but neither any reply was sent nor the amount was paid. Thus, a complaint was filed to launch the prosecution under Section 138 N.I Act.
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the accused had brought Ext.P1 cheque after filling up all entries and the signature was authored on it, in their presence.
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details of the accused with the bank and marked in evidence as Ext.P45 series.
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expenses in connection with travelling of his son to New Zealand. According to him, the amount was agreed to be returned when a job was obtained by his son and settled. He has stated further that the accused brought the cheque to his house with entries filled up and signature authored on it from his house in front of himself and his wife and given to him. According to him, the cheque so issued is Ext.P1 and it when presented before the bank was returned bounced for insufficiency of funds.
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initiative of the complainant, for his business transaction. The accused has no case that the complainant caused the
account to be opened upon practising fraud on him or by compulsion.
complainant has specifically stated there that the cheque issued by the accused was bounced by the bank for
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insufficiency of funds. A demand was also made for payment of the amount covered by the cheque to avoid the prosecution proposed to be initiated. Therefore, the dual purpose of issuing a statutory notice contemplated under clause (b) of proviso to Section 138 N.I. Act, are served. Therefore, the trial court is erred and unjustified in holding that the prosecution is defeated on account of want of pleadings on all aspects of the monetary transaction involved in the statutory notice issued to the accused.
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rubber business at Erattupetta during 2007 and for doing the financial transactions relating to the said business, he made a request to him to open an account with Aruvithura Branch of Federal Bank. The accused approached the bank officials and at the instance of the complainant, he opened a savings bank account there. The complainant kept the passbook, the cheque book having ten cheque leaves and the ATM card obtained from the bank in his favour for the purpose of the business. He manipulated the cheque leaves without his knowledge and consent, while himself and his wife were residing in Australia with their son. When he returned from Australia, the complainant demanded him to clear off the arrears of the loan pending in Kizhathadiyoor Service Co-operative Bank. The accused was not amenable for that and out of vengeance, a cheque leaf was fabricated by the complainant and the prosecution in question was launched.
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whom was one Mr.N.U.Joseph who is the brother of Mr.M.U.John, an employee of Aruvithura branch of Federal Bank Ltd. It was brought out further that Sri.M.U.John introduced the accused to the bank to open a new account at the instance of the complainant.
the account with the bank the passbook and the cheque
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book containing ten cheque leaves were kept by the complainant himself. A case of compulsory or fraudulent receipt of those documents having not been projected and established by the accused, it can be presumed that those were kept by the complainant as permitted by the accused, for facilitating his business transactions as and when required.
10,00,000/- and thus indebted to a bank. According to him, cash worth 10,00,000/- was with him. It is also disclosed by PW1 that he had received money from his father-in-law, the accused. Admittedly the complainant also received money from his brother-in-law for treatment of his child. From the evidenceCrl.A. No. 1172 of 2019
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tendered by PW1, the trial court doubted his source of money to advance `30,00,000/- to the accused. The defence has also brought to light during cross examination of PW1, that the business started by him with his Malaysian connections failed during the first month of 2012. It is surprising to note that even when the business run by the complainant was in failure, he claimed to have advanced money to one Mr. Navas. The trial court disbelieved PW1 for the above inconsistencies brought out by the accused during cross examination.
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those aspects. Accused has not projected a case of forging of his signature in Ext.P1 by the complainant.
“i) A person must have drawn a cheque on an account maintained by him in a Bank for payment of certain amount of money to any person out of his account.
ii) The cheque should have been drawn for the discharge of any debt or any liability in whole or in part.
Iii) The cheque has been presented to the Bank within a period of six months from the date on which it was drawn or within a period of its validity, whichever is earlier.
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iv) The cheque is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the Bank.
v) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer within thirty days of the receipt of the information by him from the Bank regarding the return of the cheque as unpaid, and
vi) The drawer of such cheque fails to make payment of said amount of money to the payee or the holder in due course of the cheque, within 15 days of the receipt of the said notice. ”
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presentation before a bank for encashment for the reason of insufficiency of funds or the amount exceeds arrangement and that statutory notice was issued to the accused, but the repayment demanded was not made and in such a scenario that the complaint was filed to initiate the prosecution.
v. Mukesh Kumar [2019 (1) KHC 774 (SC)] as follows :
“When a signed blank cheque is admittedly issued voluntarily by the accused to the complainant, it can be presumed that the cheque was issued to discharge a legally enforceable debt.”
Therefore, from the evidence adduced by the complainant it can be safely drawn that Ext.P1 cheque was voluntarily issued by the accused to the complainant with signature affixed. Therefore, there is scope for the presumption under Section 138 N.I. Act to be attracted that Ext.P1 was issued by the accused to discharge a debt or liability. As provided under Section 139 N.I. Act, the
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presumption attracted would continue to operate until it is rebutted by the accused.
Sriramulu Naidu (since deceased) through L.rs. V. Maruthachalam (since deceased) through L.rs. (2023 (1) KHC 382) that rebuttal of presumption can be in two ways:
“The accused has produced income tax returns of the complainant to establish that he did not have financial capacity to lend money as alleged. It has been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It was held that when the accused had raised a probable defence regarding the financial capacity of the complainant which satisfies the standard of preponderance of probability, trial court rightly acquitted the accused.”
evidence that has been brought on record from PW1 during cross examination by the accused as well as those adduced by the accused independently. The evidence of the accused
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in the case on hand consists of the oral evidence tendered
by DW1 and Exts.D1 to D3.
30,00,000/- to the accused. The date on which the money was advanced by the complainant to the accused was not stated by him in the complaint. What was stated was that a cheque to discharge the debt was issued by the accused on 07.08.2011. During cross examination when a specific query was put regarding the date on which the amount was advanced by the complainant to the accused, he stated that it was on 07.08.2011. Therefore, complainant himself has projected a case during his examination as PW1 that 30,00,000/- borrowed was agreed by the accused to be repaid as and when his son who migrated to Australia has obtained a job to settle there. He has no case during examination in chief that Ext.P1 was given as security by the accused on the date of borrowal of the money itself.Therefore, the complainant is found to have no definite idea
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about the time at which the money was advanced to the accused and Ext.P1 cheque was issued by the latter to him. The inconsistency brought out in evidence by the accused during cross examination of the complainant as PW1, being a material one, as far as the case of the complainant is concerned, benefit of that would only be in favour of the accused and he make use of that to have the presumption under Section 139 N.I Act, rebutted.
30,00,000/- to the accused. Since the complainant has taken a stand that the amount was advanced on 07.08.2011, he must have established his source of money at that point of time. Complainant has stated during examination that a loan of 10,00,000/- was availed by him from the Erattupetta Branch of State Bank of India. According to him, he was also engaged in a partnership business during the year 2007 under the name and style “Star Investments” but it went in loss in 2010. AccordingCrl.A. No. 1172 of 2019
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to him, his intervention was also there as a broker in a transaction of purchase of 48 cents of property at Cherpunkal town by his brother in law in the month of 2011 and a brokerage was received. He has also stated to have owned 2.5 acres of property in the year 1998.
10,00,000/- was availed by him from Kizhathadiyoor Service Co-operative Bank for the complainant by mortgaging his property. But, he failed to state the exact point of time when the loan was availed by him. The complainant has examined the Manager of Kizhathadiyoor Service Co-operative Bank as PW3 and he deposed that on 01.08.2011 a loan of 10,00,000/- was availed by the complainant from the bank. He has also produced Exts.P36 to 42 with a view to establish the various transactions he had with the Bank.Crl.A. No. 1172 of 2019
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complainant with the bank, which is marked in evidence as Ext.P43.
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travel expenses of whom, 30,00,000/- was allegedly advanced by him. Admittedly, money was also availed by the complainant from his father in law during hospitalisation of his son. Complainant has also projected a case that he had advanced a huge sum to one Mr.Navas, though admittedly his business then was running in loss. Therefore, the narration given by the complainant about the source of money he had at the relevant time to advance 30,00,000/- is highly inconsistent, unbelievable and is only to be discarded being devoid of any basis.
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`30,00,000/- was allegedly availed by him, he had engaged
in transactions of purchase of property in his name. According to him, he had the financial resources at the time when he migrated to Australia and there was no occasion for him to borrow funds for the alleged purpose from the complainant.
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Sunday School, the hours of working of which was from 9.30 a.m to 12.45 p.m.
Appeal fails for the reasons and is dismissed. The judgment under challenge is thus maintained.
Sd/MARY JOSEPH
ttb
2 issues framed by the court
Whether the trial court erred in acquitting the accused under Section 138 NI Act on the ground that the complainant failed to prove his financial capacity to advance the loan amount.
Whether the presumption under Section 139 NI Act was rebutted by the accused by raising a probable defence regarding the complainant's financial capacity and the circumstances of issuance of the chequ
Colour shows how this judgement treated each authority
Sanil James v. State of Kerala and AnotherReferred
Sanil James v. State of Kerala and Another 2022 (6) KHC 278
P.Rasiya v. Abdul Nazer and AnotherReferred
P.Rasiya v. Abdul Nazer and Another [2022 SAR (Crl) 970]
Triyambak S. Hegde v. SripadReferred
Triyambak S. Hegde v. Sripad [2021 (5) KHC 563 SC]
Basalingappa v. MudibasappaDistinguished
Basalingappa v. Mudibasappa [2019 (2) KHC 451]
Bhupesh Rathod v. Dayashankar Prasad Chaurasia and AnotherReferred
Bhupesh Rathod v. Dayashankar Prasad Chaurasia and Another [2021 (6) KHC 368]
Sameti Vij v. M/s. Paramount Tech Fab IndustriesReferred
Sameti Vij v. M/s. Paramount Tech Fab Industries [2021 (2) KHC 658]
Mathew K.John v. State of Kerala and AnotherReferred
Mathew K.John v. State of Kerala and Another 2021 (1) KHC 232
Ghurey Lal v. State of U.PReferred
Ghurey Lal V. State of U.P [(2008 KHC 5109) = 2009 (1) SCC (Cri) 60] · Who else cites this
Basalingappa v. MudibasappaReferred
Basalingappa Vs. Mudibasappa (2019 (2) KHC 451 SCC) · Who else cites this
Tedhi Singh v. Narayan Dass MahantReferred
Tedhi Singh V. Narayan Dass Mahant (2022 (2) KLT 1123 (SC))
Divakaran K.K. v. State of Kerala & AnrOverruled
Divakaran K.K. V. State of Kerala & Anr [2016 (4) KHC 901]
Basheer v. Usman KoyaReferred
Basheer v. Usman Koya [2021 (2) KLT 567]
Bir Singh v. Mukesh KumarReferred
Bir Singh v. Mukesh Kumar [2019 (1) KHC 774 (SC)]
Rajaram s/o Sriramulu Naidu (since deceased) through L.rs. V. Maruthachalam (since deceased) through L.rs. (2023 (1) KHC 382)
5 provisions across 2 enactments
Jojo Scaria
M.V Joseph (Pappachan)
The State of Kerala
Mary Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court