The High Court of Kerala has clarified that the complainant’s failure to identify the accused in court several years after the alleged offence does not undermine the prosecution’s case under Section 138 of the Negotiable Instruments Act, provided the documentary and circumstantial evidence establishes issuance and dishonour of the cheque.
Background & Facts
The Dispute
The complainant, Baburaj, alleged that the accused, Sureshkumar K.B., deceived him in 2009 by promising to arrange employment abroad in exchange for Rs.1,50,000. When the promise was broken, Sureshkumar issued a cheque dated 28.05.2009 for the same amount. The cheque was dishonoured on 14.08.2009 due to insufficient funds. Despite statutory notice, payment was not made, prompting the complainant to file a criminal complaint under Section 138 of the Negotiable Instruments Act.
Procedural History
- 2011: Complaint filed before Judicial Magistrate First Class, Pattambi
- 2013: Trial Court convicted accused and sentenced to 3 months’ imprisonment and fine of Rs.1,50,000
- 2016: First appeal dismissed by Additional Sessions Judge; sentence reduced to "imprisonment till rising of court"
- 2016: Revision petition filed by accused, quashed by Kerala High Court and remanded for reconsideration of identification issue
- 2018: Appellate Court reaffirmed conviction, holding identity proof unnecessary in cheque dishonour cases
- 2018: Second revision petition filed before Kerala High Court
Relief Sought
The accused sought quashing of conviction on grounds that the complainant’s failure to identify him in court during trial rendered the prosecution’s case unreliable and violated the principle of fair trial.
The Legal Issue
The central question was whether the complainant’s inability to identify the accused in court, after a gap of four years, invalidates the prosecution’s proof of issuance and receipt of the cheque under Section 138 of the Negotiable Instruments Act.
Arguments Presented
For the Appellant/Petitioner
The petitioner argued that the complainant’s failure to identify him during the test identification in court - despite being called by name and standing within view - demonstrated that the complainant had no prior acquaintance with him. He relied on State of Maharashtra v. Suresh to contend that identity is a foundational element in criminal prosecution, and absence of positive identification creates reasonable doubt. He further argued that the cheque was issued to a third party, Surendran, and had been misused.
For the Respondent/State
The State contended that identity is not a statutory requirement under Section 138 NI Act. The prosecution established the execution of the cheque through Ext.P1, its presentation, dishonour, and statutory notice - all of which were unchallenged. The State cited K. Srinivas v. K. Srinivas to argue that the burden lies on the accused to prove lack of liability, not on the complainant to prove lifelong memory of the accused’s face. The Court’s observation that crowded courtrooms make visual identification unreliable was also emphasized.
The Court's Analysis
The Court examined the nature of offences under Section 138 NI Act, noting that it is a strict liability offence where the focus is on the act of issuing a cheque with insufficient funds, not on personal familiarity between parties. The Court held that the complainant’s testimony regarding receipt of the cheque, its dishonour, and the statutory notice was corroborated by documentary evidence (Ext.P1 to P5). The absence of prior acquaintance was explicitly admitted by the complainant himself during cross-examination.
"The absence of memory power of the complainant to identify the petitioner in the year 2013 in court hall, after the elapse of about four years from the date of issuance of cheque, cannot be taken as a reason to disbelieve the version of the complainant about the execution and issuance of Ext.P1 cheque in the year 2009."
The Court further observed that the test identification procedure was conducted under normal courtroom conditions, where the accused was standing at the rear, and the complainant was confined to the witness box. The complainant’s inability to spot him under these conditions did not equate to a failure of proof. The Court distinguished this from cases involving eyewitnesses to violent crimes, where identification is central. Here, the cheque itself was the primary evidence.
The Court also noted that the accused did not adduce any defence evidence, nor did he challenge the authenticity of the cheque’s signature or the notice. The concurrent findings of two courts below, supported by documentary proof, could not be disturbed in revision.
The Verdict
The revision petition was dismissed. The Court upheld the conviction under Section 138 of the Negotiable Instruments Act, affirming that the complainant’s failure to identify the accused in court after four years does not invalidate the prosecution’s case when the cheque, its dishonour, and statutory compliance are proven. The sentence of imprisonment till the rising of court and the fine of Rs.1,50,000 were confirmed.
What This Means For Similar Cases
Identity Is Not a Statutory Requirement Under Section 138
- Practitioners must argue that Section 138 NI Act is a commercial offence focused on the instrument’s validity, not personal recognition
- Defence strategies based solely on non-identification should be challenged with precedents like K. Srinivas v. K. Srinivas
- Courts will not allow accused to exploit procedural delays or courtroom logistics to create reasonable doubt
Documentary Evidence Prevails Over Oral Testimony in Cheque Cases
- When a cheque is duly signed, presented, dishonoured, and notice is served, the burden shifts to the accused to rebut
- Oral testimony on identification is secondary; the cheque and bank return memo are primary evidence
- Defence counsel should focus on challenging signature authenticity or lack of consideration, not memory lapses
Test Identification Procedures Are Context-Sensitive
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Courts must assess whether identification tests were conducted fairly and under realistic conditions
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Witness visibility from the witness box, lighting, and crowd density are relevant factors
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A negative identification under these constraints cannot be treated as conclusive proof of innocence
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Practitioners should record courtroom conditions during test identification for appellate challenges
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If identity is genuinely disputed, the accused must file a formal application for production of the original cheque or handwriting expert testimony
