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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2043 OF 2013 (@ SLP (CRL.) No.9505 of 2011)

John K. Abraham  …. Appellant

VERSUS

Simon C. Abraham & Another  …. Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

2. This  appeal  is  directed against  the judgment of  the High  

Court  of  Kerala  at  Ernakulam dated 15th December,  2010  

passed in Criminal Appeal No.452 of 2004.  

3. The issue involved in this appeal arises under Section 138 of  

the  Negotiable  Instruments  Act.  The  complaint  was  

preferred by the respondent No.1 before the Chief Judicial  

Magistrate, Pathanamthitta alleging that appellant borrowed  

a sum of Rs.1,50,000/- from him and issued a cheque for the  

said sum on 20.06.2001 drawn on Indian Overseas Bank,  

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Plankamon branch in discharge of the debt. It is the further  

case of the respondent--complainant that when the cheque  

was  presented  for  encashment  through  Pathanamthitta  

District Co-operative Bank, Kozhencherry branch, the same  

was  returned  by  the  bankers  with  the  endorsement  

‘insufficient  funds  in  the  account  of  the  accused’.  The  

respondent-complainant  stated  to  have  issued  a  lawyer’s  

notice on 14.07.2001, which was received by the appellant  

on  16.07.2001,  but  yet  there  was  no  reply  from  the  

appellant.  Based  on  the  above  averments  alleged  in  the  

complaint, the case was tried by the learned Chief Judicial  

Magistrate.  

4. The respondent herein was examined as PW.1 and Exhibits  

P-1 to P-6 were marked. None was examined on the side of  

the  appellant.  In  the  questioning  of  the  appellant  made  

under Section 313 of Cr.P.C., the appellant took the stand  

that  his  son took the cheque from him and that  if  at  all  

anything was to be recovered, it had to be made from the  

son of the appellant, since the appellant had not borrowed  

any money.  

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5. The learned Chief Judicial  Magistrate after considering the  

oral  and  documentary  evidence  led  on  behalf  of  the  

respondent-complainant,  held  that  the  respondent-

complainant  was  making  a  prevaricating  statement  as  

regards the issuance of the cheque, that he was not even  

aware of the date when the amount was said to have been  

borrowed  by  the  appellant,  that  there  was  material  

alteration in the instrument and, therefore, the respondent  

failed  to  establish  a  case  under  Section  138  of  the  

Negotiable Instruments Act. Consequently, the learned Chief  

Judicial  Magistrate  found  the  appellant  not  guilty  and  

acquitted  him  under  Section  255(1)  of  Cr.P.C.  The  

respondent preferred the appeal in the High Court of Kerala  

at Ernakulam and by the impugned order the High Court  

reversed  the  judgment  of  the  learned  Chief  Judicial  

Magistrate,  convicted  the  appellant  and  imposed  the  

sentence  to  pay a  fine  of  Rs.1,50,000/-  as  compensation  

under  Section  357(1)  of  Cr.P.C.  In  default  of  making  the  

payment of the fine amount, the appellant was directed to  

suffer simple imprisonment for a period of three months.  

6. We  heard  Mr.  Romy  Chacko,  learned  counsel  for  the  

appellant and Mr.  Jogy Scaria, learned counsel for the 2nd  CRIMINAL APPEAL NO.         OF 2013 (@ SLP (CRL.) No.9505 of 2011)           3 of 9

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respondent.  We also  perused  the  material  papers  placed  

before us, including the judgment of the trial Court as well  

as the High Court. Having considered the above, we are of  

the view that the High Court was in error in having reversed  

the judgment of the trial Court.  

7. When we examine the case of the respondent-complainant  

as projected before the learned Chief Judicial Magistrate and  

the material evidence placed before the trial Court, we find  

that the trial  Court  had noted certain vital  defects in the  

case of the respondent-complainant. Such defects noted by  

the learned Chief Judicial Magistrate were as under:

(a) Though the respondent as PW-1 deposed that the  

accused  received  the  money  at  his  house  also  

stated that he did not remember the date when the  

said sum of Rs.1,50,000/- was paid to him.

(b) As  regards  the  source  for  advancing  the  sum  of  

Rs.1,50,000/-,  the  respondent  claimed  that  the  

same was from and out of the sale consideration of  

his share in the family property, apart from a sum of  

Rs.50,000/-, which he availed by way of loan from  

the co-operative society of the college where he was  

employed. Though the respondent stated before the  

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Court  below  that  he  would  be  in  a  position  to  

produce the documents in support of the said stand,  

it was noted that no documents were placed before  

the Court below.

(c) In the course of cross-examination, the respondent  

stated that the cheque was signed on the date when  

the payment was made, nevertheless he stated that  

he was not aware of the date when he paid the sum  

of Rs.1,50,000/-.

(d) According to the respondent, the cheque was in the  

handwriting  of  the  accused  himself  and  the  very  

next  moment he made a contradictory  statement  

that the cheque was not in the handwriting of the  

appellant  and  that  he  (complainant)  wrote  the  

same.

(e) The  respondent  also  stated  that  the  amount  in  

words was written by him.

(f) The trial Court has also noted that it was not the  

case  of  the  respondent  that  the  writing  in  the  

cheque and filling up of the figures were with the  

consent of the accused appellant.

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8. In light of the above evidence, which was lacking in very  

many  material  particulars,  apart  from  the  contradictions  

therein, the trial Court held that the appellant was not guilty  

of  the  offence  alleged  against  under  Section  138  of  the  

Negotiable Instruments Act and acquitted him.  

9. Keeping the above factors in mind, when we examine the  

judgment impugned in this  appeal,  we find that  the High  

Court  committed  a  serious  illegality  in  reversing  the  

judgment  of  learned  Chief  Judicial  Magistrate.  While  

reversing the judgment of the trial Court, what weighed with  

the learned Judge of  the High Court  was that  in  the 313  

questioning, it was not the case of the appellant that a blank  

signed cheque was handed over to his son and that even in  

the cross-examination it was not suggested to PW-1 that a  

blank  cheque  was  issued.  The  High  Court  was  also  

persuaded by the fact that the appellant failed to send any  

reply  to  the  lawyer’s  notice,  issued  by  the  respondent.  

Based on the above conclusions, the High Court held that  

the  presumption  under  Sections  118  and  139  of  the  

Negotiable Instruments Act could be easily drawn and that  

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the appellant failed to rebut the said presumption. On that  

single factor, the learned Judge of the High Court reversed  

the judgment of the trial Judge and convicted the appellant.  

It has to be stated that in order to draw the presumption  

under Section 118 read along with 139 of  the Negotiable  

Instruments  Act,  the  burden  was  heavily  upon  the  

complainant to have shown that he had required funds for  

having  advanced  the  money  to  the  accused;  that  the  

issuance  of  the  cheque  in  support  of  the  said  payment  

advanced was true and that the accused was bound to make  

the payment as had been agreed while issuing the cheque in  

favour of the complainant.

10. Keeping the said statutory requirements in mind, when we  

examine  the  facts  as  admitted  by  the  respondent-

complainant, as rightly concluded by the learned trial Judge,  

the  respondent  was  not  even  aware  of  the  date  when  

substantial amount of Rs.1,50,000/- was advanced by him to  

the appellant,  that  he was not  sure as to who wrote the  

cheque,  that  he  was  not  even  aware  when  exactly  and  

where  exactly  the  transaction  took  place  for  which  the  

cheque came to be issued by the appellant. Apart from the  

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said serious lacuna in the evidence of the complainant, he  

further admitted as PW.1 by stating once in the course of  

the  cross-examination  that  the  cheque  was  in  the  

handwriting  of  the  accused  and  the  very  next  moment  

taking a diametrically  opposite stand that it  is  not in the  

handwriting of the accused and that it was written by the  

complainant himself, by further reiterating that the amount  

in  words  was  written  by  him.  We  find  that  the  various  

defects in the evidence of respondent, as noted by the trial  

Court,  which  we  have  set  out  in  paragraph  7  of  the  

judgment,  were  simply  brushed  aside  by  the  High  Court  

without assigning any valid reason. Such a serious lacuna in  

the evidence of the complainant, which strikes at the root of  

a complaint under Section 138, having been noted by the  

learned trial Judge, which factor was failed to be examined  

by the High Court while reversing the judgment of the trial  

Court, in our considered opinion would vitiate the ultimate  

conclusion  reached by it.  In  effect,  the  conclusion of  the  

learned Judge of the High Court would amount to a perverse  

one  and,  therefore,  the  said  judgment  of  the  High  Court  

cannot be sustained.

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11. Having regard to our above conclusion, this appeal stands  

allowed. The order impugned is set-aside, the conviction and  

sentence imposed on the appellant is also set aside.  

………….……….…………………………..J.                          [Surinder Singh Nijjar]

   ...……….…….………………………………J.

               [Fakkir  Mohamed Ibrahim  Kalifulla]

New Delhi;  December 05, 2013.  

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