WILFRED JOSE vs JAYAPAL
- Court
- Kerala High Court
2026:KER:33932
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
MONDAY, THE 18 DAY OF MAY 2026 / 28TH VAISAKHA, 1948
CRL.A NO. 1964 OF 2008
AGAINST THE JUDGMENT DATED 15.06.2007 IN CC NO.588
OF 2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV,
NEYYATTINKARA
APPELLANT/ COMPLAINANT :
WILFRED JOSE
S/O.DENNISON, KUNNUVILA VEEDU
VADAKODU DESOM, PERUMPAZHATHOOR VILLAGE.
BY ADVS.
SRI.R.T.PRADEEP
SHRI.V.VIJULAL
RESPONDENTS/ ACCUSED AND STATE :
1 JAYAPAL
S/O.SREEDHARA PANICKER
T.C.36/1786, PRASANTH BHAVAN, V.K.K.NAGAR,,
VALLAKKADAVU, FROM SREE NILAYAM,
PULIYADACHANVILA,, KAZHAVOOR DESOM,
KANJIRAMKULAM VILLAGE.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.04.2026 AND THE COURT ON 18.05.2026 DELIVERED THE
FOLLOWING:
2026:KER:33932
CRL.A NO. 1964 OF 2008
2
CR
JUDGMENT
th
Dated this the 18 day of May, 2026
Judgment of acquittal dated 15.06.2007 in
C.C.No.588/2005 on the files of the Judicial First Class
Magistrate Court-IV, Neyyattinkara, is under challenge in this
appeal filed at the instance of the appellant, who is the
st
complainant in the above case. The 1 respondent herein is
nd
the accused in the said case. The 2 respondent herein is
the State of Kerala, represented by the learned Public
Prosecutor.
2. Heard the learned counsel for the
appellant/complainant and the learned Public Prosecutor in
detail. Perused the judgment under challenge and the
records available.
3. I shall refer the parties in this appeal as
‘ complainant ’ and ‘ accused ’ hereinafter, for easy reference.
2026:KER:33932
CRL.A NO. 1964 OF 2008
3
4. Coming to the genesis of the case, the
complainant had filed a complaint before the Judicial First
Class Magistrate Court-IV, Neyyattinkara, alleging that the
st
accused, who is the 1 respondent herein, committed offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as ‘NI Act’ for short). The
precise allegation is that when the complainant presented
Ext.P1 cheque dated 10.02.2004 for 3,00,000/- (Rupees
₹
three lakh only), issued by the accused in favour of the
complainant to discharge liability for the said sum, the same
got dishonoured for want of funds. Although the matter of
dishonour of the cheque was intimated to the accused and
demand for payment of the amount covered by Ext.P1
cheque, the accused failed to repay the amount.
5. The learned Magistrate tried the matter.
During trial, PW1 was examined and Exts.P1 to P10 were
2026:KER:33932
CRL.A NO. 1964 OF 2008
4
marked on the side of the complainant. No defence evidence
was adduced, though opportunity was provided to the
accused to adduce defence evidence.
6 . While assailing the verdict impugned, it is
submitted by the learned counsel for the complainant that the
learned Magistrate had taken a hyper-technical stand in
evaluating the evidence of PW1, which would categorically
suggest borrowing of ₹ 3,00,000/- by the accused from the
complainant on 01.02.2004 and issuance of Ext.P1 cheque
for its discharge. According to the learned counsel for the
complainant, the evidence of PW1 shows that the
complainant discharged his initial burden in the matter of
transaction which led to execution of Ext.P1 cheque and
thereby the complainant could very well avail the
presumptions under Sections 118 and 139 of the NI Act. It is
also pointed out that the presumptions in no way rebutted by
2026:KER:33932
CRL.A NO. 1964 OF 2008
5
the accused with the aid of evidence available. Therefore, the
verdict impugned would require interference.
7. The learned Public Prosecutor also
supported the verdict of the learned Magistrate.
8. Now the question arises for consideration
are :
1. Whether the learned Magistrate went
wrong in finding that the complainant
failed to prove the transaction led to
Ext.P1 cheque?
2. Whether the learned Magistrate is
st
justified in acquitting the accused/1
respondent herein?
3. Whether the impugned verdict of the
trial court would require interference?
4. Order to be passed?
9. Point Nos. 1 to 4
In this matter, it is submitted by the learned counsel
2026:KER:33932
CRL.A NO. 1964 OF 2008
6
for the accused that the learned Magistrate relied on the
evidence of PW1, which is the sole oral evidence available,
while concluding that the accused himself wrote and signed
the cheque, and the accused succeeded in establishing that
the transaction was something otherwise than as deposed by
PW1. The learned Magistrate addressed the question as to
whether Ext.P1 cheque was issued by the accused to the
complainant towards the discharge of any legally enforceable
debt, and also whether the contention raised by the
complainant, that the accused had committed offence
punishable under Section 138 of the NI Act, had been
proved. Finally, it was found by the learned Magistrate that
the accused himself wrote the cheque and signed the same.
Then it was found by the learned Magistrate that the accused
succeeded in bringing home that the transaction was
otherwise than what had been spoken by the complainant.
2026:KER:33932
CRL.A NO. 1964 OF 2008
7
On this finding, the learned Magistrate acquitted the accused.
10. On perusal of the evidence of PW1, it could
be gathered that PW1 filed affidavit in lieu of Chief
Examination and averred that the accused issued Ext.P1
cheque dated 10.02.2004 for ₹ 3,00,000/- in discharge of
₹ 3,00,000/- borrowed by the accused from the complainant.
He also deposed about the presentation of Ext.P1 cheque
before the Catholic Syrian Bank and its dishonour with
endorsement ‘funds insufficient’ as per Ext.P2 dishonour
memo dated 13.02.2004 and Ext.P3 original intimation memo
dated 17.02.2004. His version further is that though he had
informed the accused about the dishonour of Ext.P1 cheque
by issuing Ext.P4 notice on 20.02.2004, the accused failed to
repay the amount, and the accused even did not accept the
same. Ext.P4 is the copy of legal notice, Ext.P5 is the postal
receipt, and Ext.P6 is the unserved legal notice. In the
2026:KER:33932
CRL.A NO. 1964 OF 2008
8
affidavit in lieu of Chief Examination, PW1 stated that Ext.P1
was written and brought by the accused and executed the
same in the presence of PW1. During cross-examination, he
reiterated the same statement. Even though the source to
advance ₹ 3,00,000/- as on 31.01.2004 was challenged by
the accused, subsequently, the complainant produced Ext.P7
to Ext.P10. Ext.P8 is the statement of accounts in the name
of the complainant from 01.01.2000 to 04.05.2007. However,
as on 31.01.2004, the amount available in his credit was
₹ 205. Coming to Ext.P7, the same is a composite statement
of the Hong Kong and Shanhai Banking Corporation (HSBC),
which would depict that a personal loan was opened on
22.09.2003 and 3,20,000 (Rupees three lakh twenty ₹
thousand only) was obtained by the complainant on the said
date. However, the learned Magistrate was not inclined to
accept the evidence.
2026:KER:33932
CRL.A NO. 1964 OF 2008
9
11. Now it is necessary to address how the complainant
in a prosecution alleging commission of offence punishable
under Section 138 of the NI Act would be able to discharge
his initial burden in the matter of transaction and execution of
cheque alleged to be dishonoured, so as to avail the
presumptions under Sections 139 and 118 of the NI Act.
When the complainant offers himself as a witness and
deposes about his case by eliciting the transaction and the
mode of execution of the cheque by stating that the accused
brought the cheque, written, signed and executed before him,
the said version failed to be shaken during cross-
examination, this evidence is the substantive evidence to be
relied on by the courts to hold that the complainant
discharged his initial burden. The said substantive evidence
should not be disbelieved by a court of law unless by cross-
examination or otherwise the evidence found to be not
2026:KER:33932
CRL.A NO. 1964 OF 2008
10
acceptable for which reasons to be recorded in writing. Here,
the case of the accused is that Ext.P1 cheque reached the
hands of the complainant through one Radhakrishnan. The
accused did not adduce any evidence to prove the said
contention, and he even failed to examine the said
Radhakrishnan as a witness. In paragraph No.11 of the
impugned verdict, the learned Magistrate found that the
reasonable conclusion was that “the accused himself wrote
the cheque and signed the same”. Thereafter, it was found
that during cross-examination, it was stated that the accused
written and signed the cheque, therefore, his explanation
during re-examination that what was meant by him was that
the cheque was brought, written and signed in his presence
was not accepted by the learned Magistrate. In the instant
case, on scanning the evidence of PW1, the stand taken by
the learned Magistrate is found to be unacceptable, rather
2026:KER:33932
CRL.A NO. 1964 OF 2008
11
not digestible to prudence. Once the learned Magistrate
found that the accused himself wrote the cheque and signed
the same, how the learned Magistrate could be justified in
holding that the transaction involved was something
otherwise and as not spoken by the complainant without
support of any materials to enter into such a finding?. When
a Magistrate finds that the cheque was wrote and signed by
the payer, the entries therein showing the issuance of the
cheque in the name of the payee (complainant) also is well
established.
12. As already noted, it is well settled law that in
a prosecution alleging commission of offence punishable
under Section 138 of the NI Act, the initial duty is caste upon
the complainant to prove the transaction that led to execution
of the cheque and once the initial burden is discharged
satisfactorily, then the presumptions under Sections 118 and
2026:KER:33932
CRL.A NO. 1964 OF 2008
12
139 of the NI Act would be available to the complainant,
unless and otherwise the accused is able to rebut the
presumptions by relying on the evidence already on records
or by adducing independent evidence.
13. In the instant case, the finding of the
learned Magistrate that the evidence of the complainant is
insufficient to find the transaction and execution of Ext.P1
cheque cannot be justified for the reasons discussed.
Therefore, the verdict impugned would require interference
and the appeal succeeds accordingly.
14. In the result, this appeal stands allowed and
the judgment of acquittal rendered by the trial court stands
st
set aside. Consequently, the accused/1 respondent is
convicted for the offence punishable under Section 138 of the
st
NI Act and the accused/1 respondent is sentenced to
undergo simple imprisonment for a period of one day till
2026:KER:33932
CRL.A NO. 1964 OF 2008
13
rising of the Court and to pay fine of ₹ 4,50,000/- to the
complainant. Out of ₹ 4,50,000/- ₹ 4,25,000/- shall be given
as compensation to the complainant under Section 357(1)(b)
of the Code of Criminal Procedure. In default of payment of
st
fine, the accused/1 respondent shall undergo default
imprisonment for a period of six months. On payment or
realisation of the entire fine amount, 25,000 shall go to the ₹
State Exchequer.
15. The accused is directed to surrender
before the Judicial First Class Magistrate Court-IV,
Neyyattinkara, to undergo the sentence at 11.00 am on
29.05.2026 and on failure to do so, the learned Magistrate
is directed to execute the sentence imposed by this Court,
as per law, without fail.
2026:KER:33932
CRL.A NO. 1964 OF 2008
14
Registry is directed to forward a copy of this
judgment to the Judicial First Class Magistrate Court-IV,
Neyyattinkara, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr