Kerala High Court
P.Unnikrishnan vs State Of Kerala on 28 September, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942
Crl.Rev.Pet.No.4540 OF 2006
AGAINST THE JUDGMENT IN CRA 737/2004 DATED 25-09-2006 OF
III ADDITIONAL SESSIONS COURT, FAST TRACK-I, THRISSUR
ST 364/2002 DATED 06-12-2004 OF THE
CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR
REVISION PETITIONER/APPELLANT/ACCUSED:
P.UNNIKRISHNAN,
SASTHA COLONY,
MANATHAKADU, MALAMPUZHA, PALAKKAD.
BY ADV.SRI.VINOD KUMAR.C
RESPONDENT/RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 THE DISTRICT OFFICER,
MATSYAFED, THRISSUR-4.
SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 28.09.2020, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.R.P.No.4540 of 2006
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ORDER
This revision is directed against the judgment dated 25.9.2006 of the learned third Additional Sessions Judge, Fast Track-I, Thrissur whereby the conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act') passed by the learned Chief Judicial Magistrate, Thrissur in S.T.No.364/2002 dated 06.12.2004 was confirmed.
2. The learned Magistrate convicted and sentenced the revision petitioner/accused (hereinafter referred to as 'the accused') to undergo simple imprisonment for a period of three months and also to pay a fine of Rs.2,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. If the fine amount is realised, an amount of Rs.1,90,000/- was ordered to be paid to the 2 nd respondent/complainant (hereinafter referred to as 'the complainant') as compensation under Section 357(1) of the Cr.P.C.
Crl.R.P.No.4540 of 2006
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3. It is the case of the complainant that the accused entered into an agreement dated 16.9.1998 whereby the accused was permitted to use one of the snack bars owned by the complainant at Malampuzha for a monthly licence fee of Rs.10,000/-. The accused was subsequently liable to pay a total amount of Rs.3,20,000/- to the complainant towards the arrears of licence fee as on 16.5.2001. The accused paid an amount of Rs.1,40,000/-. The balance amount of Rs.1,80,000/- was due from the accused. Thereupon, the accused issued a cheque dated 4.5.2001 for Rs.1,60,000/- to the complainant for the discharge in part of the aforesaid liability. When the cheque was presented for encashment the same was returned by the Bank for 'insufficiency of fund' in the account of the accused. The complainant received the information from the bank regarding the return of the cheque as unpaid on 18.6.2001. Consequently, the complainant sent a lawyer notice dated 21.6.2001 to the accused calling upon him to pay the Crl.R.P.No.4540 of 2006 ..4..
amount covered under the cheque. The accused received the lawyer notice on 26.6.2001. However, he did not pay the amount covered under the cheque. He sent a reply notice raising frivolous contention. Hence, the complainant filed the complaint under Section 138 of the N.I.Act before the trial court.
4. Upon consideration of the complaint, the learned Magistrate is prima facie satisfied that a case is made out against the accused. Hence the learned Magistrate took cognizance of the offence under Section 138 of the N.I.Act and the case was taken on file as S.T.No.364/2002 on the file of the Chief Judicial Magistrate Court, Thrissur.
5. On service of summons, the accused appeared before the court. Particulars of the offence were read over and explained to the accused to which he pleaded not guilty. Thereafter, the complainant was examined as PW1 and marked Exts.P1 to P12 on the side of the complainant. After PW1 was examined and before the Crl.R.P.No.4540 of 2006 ..5..
accused was called on for his defence the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him. According to him, the agreement was terminated on 15.3.2000 and the complainant had obtained a signed blank cheque from him as security for an amount of Rs.40,000/- due as on 15.3.2000. He further contended that the case was initiated by the complainant misusing the blank cheque issued by the accused.
6. On appreciation of the evidence, the learned Magistrate held that Ext.P1 cheque was issued by the accused and it was proved by the complainant that the cheque was dishonoured on account of insufficient funds. Hence the learned Magistrate concluded that the cheque was issued by the accused for discharge of a debt or liability.
7. I heard the learned counsel for the parties at length, considered the rival contentions and materials Crl.R.P.No.4540 of 2006 ..6..
placed on record.
8. In order to determine the question whether the offence punishable under Section 138 of the N.I.Act is made out against the accused, it is necessary to examine the Penal provisions of Section 138 of the N.I.Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the N.I.Act. Section 118 of the N.I.Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the N.I.Act provides presumptions to be raised until the contrary is proved, i) as to consideration, ii) as to date of instrument, iii) as to time of acceptance iv) as to time of transfer v) as to order of indorsements, vi) as to appropriate stamp and vii) as to holder being a holder in due course. That apart, Section 139 of the N.I.Act Crl.R.P.No.4540 of 2006 ..7..
provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. It goes without saying that, as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the N.I.Act are very much available to the complainant and the burden shifts to the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the Crl.R.P.No.4540 of 2006 ..8..
court to adduce reliable evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. The accused admitted that he issued a blank cheque in favour of the complainant. It is his case that an amount of Rs.40,000/- was only due from him to the complainant on 15.3.2000 and the present cheque case was foisted utilizing a blank cheque issued by him.
9. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion on the part of the complainant. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove during trial by leading cogent evidence that there was no debt or liability. In Bir Singh v. Mukesh Kumar Crl.R.P.No.4540 of 2006 ..9..
[(2019) 4 SCC 197], the Supreme Court held that in view of Section 139 of the N.I.Act read with Section 118 of the N.I.Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:-
"39. It is not the case of the respondent- accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."Crl.R.P.No.4540 of 2006
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10. In view of the above, the trial court rightly held that the complainant proved that the accused was liable to pay the amount covered under the cheque and the cheque was given to the complainant in repayment of the same. Hence the trial court rightly convicted the accused. The appellate court confirmed the conviction imposed by the trial court.
11. Coming to the question of sentence, the learned counsel for the revision petitioner contended that the trial court sentenced the accused and imposed compensation exceeding the amount covered under the cheque. According to the learned counsel for the revision petitioner, the original complainant in this case is the District Officer, Matsyafed, Thrissur, a public sector company owned by the State. The learned counsel for the revision petitioner further submitted that it is unfair on the part of the original complainant to extract excess amount as compensation from the accused who finds difficult to earn a livelihood. Further, he is a handicapped person with Crl.R.P.No.4540 of 2006 ..11..
65% disability, it has been submitted.
12. Having regard to the facts and circumstances of the case, this Court is of the view that this is a fit case to modify the sentence imposed by the trial court. The trial court sentenced the accused to undergo imprisonment for a period of three months and also to pay a fine of Rs.2,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. In view of the fact that the accused is a physically handicapped person, it is not necessary to impose compulsory imprisonment on him. As per the Scheme of Section 138 of the N.I.Act, the offence is punishable with imprisonment or with fine or with both. Hence, instead of sentencing the accused to undergo mandatory imprisonment it is just and proper to sentence the accused for a fine amount of Rs.1,60,000/- and in default of payment of fine to undergo simple imprisonment for a period of four months. Crl.R.P.No.4540 of 2006
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13. At this juncture, the learned counsel for the revision petitioner/accused submits that the accused may be given eight months' time to deposit the amount covered under the cheque before the trial court.
14. In view of the Covid-19 pandemic and the resultant financial crunch, it is just and proper to grant eight months' time to deposit the fine amount before the trial court. In case the amount is deposited by the accused before the trial court within the aforesaid period, the same shall be released to the complainant in accordance with law.
The criminal revision petition is allowed in part accordingly.
Sd/-
N.ANIL KUMAR, JUDGE skj