Sanu Varghese v. Shoukkathali ORDER

2026 INSC 1053 Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. of 2026 (@Special Leave Petition (Crl.) No.499 of 2026)

Sanu Varghese .... Appellant Versus Shoukkathali …. Respondent ORDER

Leave granted.

2. The appellant is the complainant, and the respondent

is the accused in a proceeding initiated under Section 138 of

the Negotiable Instruments Act, 1881 (NI Act). The appellant

is aggrieved with the impugned order of the High Court in

revision which remanded the matter for fresh trial from the

stage of defence evidence. The ground on which the remand

was made was the decision of this Court in M/s Mandvi

Cooperative Bank Limited v. Nimesh B. Thakore1.

3. We heard Mr. Babu Joseph K., learned Counsel for the

appellant and Mr. Raghenth Basant, learned Senior Counsel Signature Not Verified

Digitally signed by HARPREET KAUR appearing for the respondent. Date: 2026.09.24 18:45:07 IST Reason:

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4. The issue, in a narrow compass, is as to whether the

remand order was proper on the ground raised at the stage

of revision, when there is no plea of prejudice taken by the

accused. The cited decision, on a detailed consideration of

Section 145 of the NI Act held that sub-section (1) provides

that the evidence of the complainant may be given by him

on affidavit which was also to be read in evidence in any

enquiry, trial or other proceeding under the Cr.PC, subject

to all just exceptions. The provision enables only the

complainant’s chief examination to be in affidavit. As far as

sub-section (2) is concerned, it was held to be a discretion

of the Court to call a person giving evidence to do so on

affidavit and to examine him as to the facts contained

therein. However, if any application is made, either by the

prosecution or by the accused that the person giving his

evidence on affidavit should be called in person, to be again

examined as to the facts contained therein, it must be done.

5. True, this Court found a distinction between the nature

of the complainant’s evidence and the evidence of the

accused in a case of dishonoured cheque, in paragraph 48.

The nature of the evidence of the defence may not

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necessarily be documentary and the defence would adduce

other kinds of evidence to rebut the presumption, that the

issuance of the cheque was not in discharge of any debt or

liability, was the finding, which led to the conclusion that the

accused cannot be permitted to be examined on affidavit.

6. The dictum has to be applied in a criminal case,

specifically with reference to the prejudice caused to the

accused in a completed trial. In the present case, the

reading of the order of the learned Magistrate would

indicate that the accused, examined as DW-1 contended that

a signed blank cheque leaf was given as security for loan of

Rs.10 lakhs, transferred by the complainant to the account of

the accused. The cheque presented was for an amount of

Rs.30 lakhs. It was also the contention of the accused that on

the alleged date of handing over of Rs.20 lakhs and on the

date on which the cheque was issued; the evidence of PW-1,

the complainant having been corroborated by PW-2, the

complainant was not in station and was at Bengaluru.

However, no substantive evidence regarding the

unavailability of the complainant was proffered before

Court. The learned Magistrate clearly observed that the

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accused could very well have obtained the Call Data

Records (CDRs) of the mobile of the complainant to establish

his absence.

7. The accused never alleged a prejudice before the Trial

Court or before the First Appellate Court. The signature was

admitted and the presumption applies squarely which has

not been rebutted.

8. Before the High Court, the accused has merely by

reason of the ingenuity of the lawyer, taken a contention

which was erroneously accepted by the learned Single

Judge, according to us. The plea of prejudice looms large

and is stark in the above case by its absence.

9. The learned Senior Counsel appearing for the

respondent would submit that in fact, the trial was resumed

at the stage of defence evidence and completed. But that is

of no consequence when we set aside the order of the

learned Single Judge impugned in this appeal, which we do

set aside. As pointed out by the learned Senior Counsel, still

the other contentions are available. In these circumstances,

we restore Crl. R.P. No.715 of 2023 to the files of the High

Court, which shall be considered on its own merits.

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However, the evidence led at the trial initially shall only be

considered, if at all, the Trial Court has examined the

accused in person, subsequently the same shall be

eschewed.

10. The appeal stands allowed.

11. Pending application(s), if any, shall stand rejected.

……….……………………. J. (J. B. PARDIWALA)

………….…………………. J. (K. VINOD CHANDRAN)

NEW DELHI; SEPTEMBER 22, 2026.

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