Proof of Writing and Signature on Cheque Sufficient to Discharge Initial Burden under NI Act: Kerala HC

The Kerala High Court set aside an acquittal, holding that once the court finds that the accused wrote and signed the cheque, the complainant is entitled to the statutory presumptions under law.

A single-judge bench of Justice A. Badharudeen heard the appeal against a judgment of acquittal dated 15.06.2007, passed by the Judicial First Class Magistrate Court-IV, Neyyattinkara. The appeal was filed by the complainant, who alleged that the first respondent (accused) committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 regarding a dishonoured cheque of ₹3,00,000.

Court's Rationale on Discharge of Initial Burden

The High Court scrutinized the Magistrate’s finding that the complainant had failed to prove the transaction despite the trial court’s own observation that the accused himself wrote and signed the cheque. The Bench clarified the legal threshold required for a complainant to invoke statutory presumptions.

The Court, in its reasoning, observed: "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."

Misinterpretation of Evidence by the Trial Court

The Court found the Magistrate's refusal to accept the complainant's explanation regarding the execution of the cheque as "not digestible to prudence." It noted that once it is established that the accused wrote and signed the instrument, the entries showing the issuance of the cheque in the name of the payee are well established. The High Court further observed that the accused failed to produce any evidence or examine witnesses to support his claim that the cheque reached the complainant through a third party.

The Court has the following directions:

"The accused/1st respondent is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and 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. 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 fine, the accused/1st 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. 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."

Background:

The complainant alleged that the accused borrowed ₹3,00,000 and issued a cheque dated 10.02.2004 for its discharge. The cheque was returned with the endorsement 'funds insufficient'. Despite a legal notice, the accused failed to repay. During the trial, the complainant (PW1) provided oral evidence and documentary proof (Exts.P1 to P10), including bank statements to show financial capacity.

While the trial court acknowledged that the accused had written and signed the cheque, it acquitted him by taking a "hyper-technical stand" on the complainant’s testimony. The High Court, however, held that since the initial burden was discharged and the accused failed to rebut the presumptions under Sections 118 and 139 of the Negotiable Instruments Act, 1881, the conviction was necessary.

Case Details:
Case No.: CRL.A NO. 1964 OF 2008
NeutralCitation: 2026:KER:33932
Case Title: Wilfred Jose v. Jayapal and Another
Appearances:
For the Petitioner(s): SRI.R.T.PRADEEP, SHRI.V.VIJULAL
For the Respondent(s): SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR

Source: 2026 CaseBase(KER) 250