Saju Joseph Illiparambil v. V.K. Padmanabhan and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.G. Ajithkumar
Judgment Date: 2024-01-12
Court Decision / Holding: Appeal dismissed; acquittal maintained.
Final Disposition: Appeal dismissed; acquittal maintained.

Parties to the Case

Appellants / Petitioners

Saju Joseph Illiparambil

Respondents

V.K. Padmanabhan
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri A.K. Haridas

Counsels for Respondents

• L.P. Aravindakshan
• B. Ramachandran
• Smt. Pushpalatha M.K., Senior Public Prosecutor

Case Synopsis & Summary

This criminal appeal (Cr. App No. 441 of 2007) challenges the acquittal of the first respondent in a cheque-dishonour case under Section 138 NI Act. The appellant contends that the first respondent issued Ext. P1 cheque for Rs 50,000 in discharge of a debt arising from money transactions; the cheque was dishonoured on the grounds of “payment stopped by the bank.” A demand notice was issued; the respondent replied denying any debt or transaction and disavowing issuance of the cheque. At trial, PW1 and PW2 supported the appellant, while the respondent, DW1, denied any acquaintance with the appellant and claimed Ext. P1 was not issued by him and that the cheque had been lost. The trial court held that Ext. P1 was not issued in discharge of a debt or legally enforceable liability and acquitted. On appeal, the question is whether Ext. P1 was issued in discharge of a debt and whether Section 138 is attracted, alongside whether presumption under Section 139 NI Act applies. The High Court clarifies that a signed cheque gives rise to a presumption of liability; it can be rebutted with evidence. Citing Bir Singh, Basalingappa and Kalamani Tex, it notes the presumption may be challenged. On appraisal, the court finds lack of consideration for Ext. P1 and upholds the trial court’s acquittal; the appeal is dismissed.

Provisions of Law Cited

Section 378(4) of the Code of Criminal Procedure, 1973Section 138 of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881Section 313(1)(b) of the Code of Criminal Procedure, 1973

Legal Doctrines & Maxims

Presumption under Section 139 NI Act that a cheque issued in discharge of a debt creates liability in favor of the holder
Burden of rebutting presumption lies on the drawer/accused
Presumption can be rebutted by evidence and is not an absolute proof

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that Ext. P1 was issued by the first respondent in discharge of a debt or legally enforceable liability arising from money transactions, and that the signature on Ext. P1 is admitted, giving rise to a presumption under Section 139 NI Act. The appellant invokes the presumption and argues that the evidence does not negate the debt, while the questionnaire under 313(1)(b) reveals inconsistencies undermining the defence; the trial court’s finding lacks merit.

Contentions of Respondents

The respondents contend that Ext. P1 was not issued by the first respondent, deny any related transaction, and state that the cheque was lost; they argue lack of consideration and that the prosecution failed to establish a debt or liability; the evidence shows the defence has rebutted any presumption of liability.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Bir Singh v. Mukesh Kumar	[2019] 4 SCC 197	Positive	Cited to support the presumption under Section 139 NI Act and its potential to be rebutted by evidence.
Basalingappa v. Mudibasappa	[2019] 5 SCC 418	Positive	Cited for principles on presumption under NI Act and the scope of rebuttal.
M/s Kalamani Tex and another v. P.Balasubramanian	[2021] 5 SCC 283	Positive	Cited as authority on presumptions and rebuttal in NI Act context.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945** **CRL.APPEAL NO. 441 OF 2007** **AGAINST THE JUDGMENT DATED 11.07.2006 IN CC 937/2004 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -II (MOBILE),** ## **KOTTAYAM** ## **APPELLANT/COMPLAINANT:** **SAJU JOSEPH ILLIPARAMBIL HOUSE, PERUMTHURUTHU PO,, KALLARA, KOTTAYAM DISTRICT.** **BY ADV SRI.A.K.HARIDAS** ## **RESPONDENTS/ACCUSED & STATE:** - **1 V.K.PADMANABHAN P.B.NO.7538, SR.ASSISTANT, FACT (CP), AMBALAMEDU, ERNAKULAM.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **R1 BY L.P.ARAVINDAKSHAN R1 BY B.RAMACHANDRAN R2 BY SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.01.2024, THE COURT ON 12.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.441 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.441 of 2007 ----------------------------------------------------------Dated this the 12[th] day of January, 2024** ## **JUDGMENT** Judgment dated 11.07.2006 of the Judicial Magistrate of the First Class-II, Kottayam in C.C.No.937 of 2004 acquitting the 1[st] respondent is under challenge in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code). 2. The appellant filed a complaint alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act) by the 1[st] respondent. The allegations were that the 1[st] respondent, during the course of money transactions with the appellant, had issued a cheque dated 17.01.2003 in order to make payment of an amount of Rs.50,000/-, and the cheque when presented for encashment was returned unpaid for the reason “payment stopped by the bank”. Real reason for the dishonourment of the cheque was lack of sufficient funds in the account of the 1[st] respondent. A 3 Crl.Appeal No.441 of 2007 notice demanding payment of the amount due under the cheque was issued. The 1[st] respondent on receipt of the notice, instead of making payment, sent a reply stating false facts. 3. At the trial, PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the appellant. During examination under Section 313(1)(b) of the Code, the 1[st] respondent took the stand that he had no acquaintance with the appellant and he did not issue such a cheque to the appellant. He tendered evidence as DW1 and produced Ext.D1 to D7. The court below, after considering the said evidence, found the 1[st] respondent not guilty of the offence. It was held that Ext.P1 cheque was not the one issued in discharge of a debt or a legally enforceable liability and therefore no prosecution based on that cheque for an offence under Section 138 of the N.I.Act could be possible. Assailing the said finding, this appeal has been filed. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4 Crl.Appeal No.441 of 2007 5. The questions arise for consideration are,- - (i) Was Ext.P1 cheque issued by the 1[st] respondent to the appellant in discharge of a debt or a legally enforceable liability? - (ii) Had the 1[st] respondent committed an offence under Section 138 of the N.I. Act? ## Point Nos.(i) and (ii) 6. The fact that Ext.P1 cheque was drawn in an account maintained by the 1[st] respondent is not disputed. The version of the appellant is that there were money transactions between himself and the 1[st] respondent and in relation to those transactions, Ext.P1 was issued by the 1[st] respondent. The appellant claims that an amount of Rs.50,000/- was due to him from the 1[st] respondent and for the payment of that amount, Ext.P1 was issued. During the examination under Section 313 of the Code or while examined as DW1, the 1[st] respondent did not specifically deny his signature in Ext.P1. In the said circumstances, it may be said that the signature in Ext.P1 is admitted by him. When the signature in Ext.P1 cheque is admitted, a presumption that it was issued in discharge of a debt or a legally enforceable liability is possible. 5 Crl.Appeal No.441 of 2007 (See: **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197], Basalingappa v. Mudibasappa [(2019) 5 SCC 418]** and **M/s Kalamani Tex and another v. P.Balasubramanian [(2021) 5 SCC 283]** ) 7. The question then arises is whether the 1[st] respondent succeeded in rebutting the resumption in respect of Ext.P1 cheque. On receipt of Ext.P3 demand notice, the 1[st] respondent sent a reply. Although the said fact was stated in the complaint, the reply was not produced. The 1[st] respondent produced a copy of the reply as Ext.D3. He specifically stated in the reply that he had no money transaction with the appellant nor had he issued any cheque to the appellant. Inspite of such a reply, the complaint did not stage the details of the transaction in relation to which Ext.P1 cheque was issued. While giving evidence as PW1, the appellant, however, changed the version and admitted that Ext.P1 was obtained as a security when he advanced money to one Sunil. PW1 testified that the 1[st] respondent is the brother-in-law of Sri.Sunil and as his surety, the 1[st] respondent issued Ext.P1 6 Crl.Appeal No.441 of 2007 cheque. It is his further version that at the time of issuing Ext.P1, the 1[st] respondent received back a promissory note and another cheque issued earlier. The said version of PW1 is totally in deviation from the averments in the complaint. In the light of the said contradictory stand taken by the appellant, the evidence tendered by the 1[st] respondent assumes importance. 8. The 1[st] respondent as DW1 deposed that he did not even know the appellant. He admitted that Sri.Sunil is his brother-in-law. But he categorically denied having any involvement in the transaction between the appellant and Sri.Sunil. He also stated that Ext.P1 was not issued by him to the appellant and in fact the cheque was lost from his possession. 9. It is true that if a cheque was issued by its drawer with his signature, even if it is as security, can be used as a negotiable instrument, provided the drawer has given authority to the holder of the cheque to make the cheque complete. In such a case, presumption under Section 139 of 7 Crl.Appeal No.441 of 2007 the N.I.Act is available in favour of the holder of the cheque. But in this case, the evidence tendered by PW1 is insufficient to find that Ext.P1 was issued by the 1[st] respondent to the appellant with an authority to make it complete and use as a negotiable instrument. 10. Ext.D1 is a letter sent by the appellant to the 1[st] respondent on 09.04.2001. It is stated in it that an amount of Rs.50,000/- was lent to Sri.Sunil with the 1[st] respondent as surety and the cheque given by him would be made use of, if the money was not paid by Sri.Sunil. A reply was sent by the 1[st] respondent, a copy of which is proved by him. It is Ext.D2. The 1[st] respondent denied in Ext.D2 that he was a surety for the loan availed by Sri.Sunil. DW1 admitted having issued Ext.D1 letter. But, in total disregard of such facts, the appellant filed the complaint stating that Ext.P1 was issued by the 1[st] respondent in regard to a money transaction between the appellant and the 1[st] respondent. Explanation given by the appellant during cross-examination is insufficient to prove that any amount was due from the 1[st] respondent. In fact, his 8 Crl.Appeal No.441 of 2007 evidence in the light of the oral testimony of DW1 and Exts.D1 and D2 established that Ext.P1 is not supported by any consideration. Thereby, the presumption available in respect of Ext.P1 under Section 139 of the N.I. Act stands rebutted. The court below arrived at such a conclusion after referring to the evidence in detail. I find no reason to hold that the said finding is perverse or even incorrect. Therefore, this appeal fails and it is accordingly dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr