When Cheque Was Found To Be Wrote & Signed By Payer, Entries Showing Cheque In Complainant’s Name Also Stands Established: Kerala High Court

The Kerala High Court was considering an appeal filed at the instance of the appellant-complainant challenging the judgment of acquittal.

Update: 2026-05-22 06:30 GMT

Justice A. Badharudeen, Kerala High Court

While confirming conviction under Section 138 of the Negotiable Instruments Act, the Kerala High Court has held that when a Magistrate finds that the cheque was written and signed by the payer, the entries therein showing the issuance of the cheque in the name of the payee (complainant) also stand well established.

The High Court was considering an appeal filed at the instance of the appellant-complainant challenging the judgment of acquittal.

The Single Bench of Justice A. Badharudeen held, “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.”

Advocate R.T. Pradeep represented the Appellant, while Senior Public Prosecutor Renjit George represented the Respondent.

Factual Background

The complainant had filed a complaint before the Judicial First Class Magistrate Court alleging that the accused (first respondent) committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. It was alleged that when the complainant presented the cheque for ₹3 lakh 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 a demand for payment of the amount covered by the cheque, the accused failed to repay the amount.

Reasoning

The Bench explained 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 crossexamination, 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 crossexamination or otherwise the evidence found to be not acceptable for which reasons to be recorded in writing.”

Dealing with the facts of the case, the Bench noted that the 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 the impugned verdict, the 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 had written and signed the cheque. His explanation during re-examination was that the cheque was brought, written and signed in his presence, but the same was not accepted by the Magistrate.

The Bench further asserted, “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 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.”

The Bench held that the observation of the Magistrate that the evidence of the complainant was insufficient to find the transaction and execution of the cheque could not be justified. Thus, allowing the appeal, the Bench convicted the accused/first respondent for the offence punishable under Section 138 of the NI Act. “...the accused/1st respondent is sentenced to undergo simple imprisonment for a period of one day till rising of the Court and to pay fine of ₹4,50,000/- to the complainant”, it ordered.