Kerala High Court
Seraphin vs Lucy Alphones on 5 April, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 31ST DAY OF MARCH 2017/10TH CHAITHRA, 1939
Crl.Rev.Pet.No. 912 of 2016 ()
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(AGAINST THE JUDGMENT IN CRL.A.NO.314/2016 OF ADDL.SESSIONS COURT-II,
THIRUVANANTHAPURAM DATED 05-04-2016)
(AGAINST THE JUDGMENT IN CC.NO. 56/2013 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IV (MOBILE COURT),THIRUVANANTHAPURAM
DATED 13-10-2015)
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REVISION PETITIONER/APPELLANT/ACCUSED :
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SERAPHIN,
AGED 58, W/O. FREDY,SERAPHIN VILLA,
PRADEKSHA ROAD, SHANGUMUGHOM P.O.,
THIRUVANANTHAPURAM.
BY ADVS.SRI.V.PHILIP MATHEW
SRI.GIBI.C.GEORGE
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & THE STATE :
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1. LUCY ALPHONES,
W/O. ALPHONES, T.C.34/120,
ALPHONES VILLA, NEAR KANNANTHURA L.P. SCHOOL,
SHANGUMUGHOM P.O.,THIRUVANANTHAPURAM-695 004.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN-682 031.
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 31-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
ALEXANDER THOMAS, J.
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Crl.R.P.No.912 Of 2016
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Dated this the 31st day of March, 2017.
O R D E R
The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No.56/2013 on the file of the Judicial First Class Magistrate Court-IV (Mobile Court), Thiruvananthapuram, instituted on the basis of a complaint preferred by the 1st respondent herein. The trial court as per the impugned judgment rendered on 13.10.2015 had convicted the petitioner for the above said offence and had sentenced her to undergo imprisonment till the rising of the court and to pay compensation of Rs.75,000/- (cheque amount) to the complainant as per Sec.357(3) of the Cr.P.C and in default thereof the accused was sentenced to undergo simple imprisonment for 2 months. Aggrived thereby, the petitioner has preferred Crl.A.314/2015 before the Sessions Court, Thiruvananthapuram. The appellate court concerned (Court of Additional Sessions Judge-II, Thiruvananthapuram), as per the impugned judgment rendered on 5.4.2016, has confirmed the impugned conviction and has also confirmed the substantive sentence ::2::
Crl.R.P.No.912 Of 2016 of simple imprisonment till the rising of the court but modified the compensation of Rs.75,000/- payable under Sec.357(3) of the Cr.P.C as an order to pay Rs.75,000/- as fine, which has to be disbursed to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C., with the same default clause of simple imprisonment for 2 months, etc. It is aggrieved by these judgments that the petitioner has preferred the instant revision petition by taking recourse to the remedy under Sec.397 r/w. Sec.401 of the Cr.P.C.
2. The case of the prosecution is that the accused had borrowed an amount of Rs.75,000/- from the complainant on 10.10.2012 for her personal purpose and for repayment of the said amount the accused had issued Ext.P-1 cheque dated 10.12.2012 for an amount of Rs.75,000/- drawn from her account in favour of the complainant. Upon Ext.P-2 dishonour memo dated 13.12.2012 from the bank, the complainant had issued Ext.P-3 statutory demand notice dated 17.12.2012 calling upon the accused to pay an amount of Rs.75,000/- covered by the cheque within 15 dyas and the said notice was duly served on the accused to which Ext.P-6 reply dated 31.12.2012 has been sent by the accused. As the accused did not pay ::3::
Crl.R.P.No.912 Of 2016 the amount, the complainant has preferred the instant complaint which has resulted in the trial in question.
3. The revision petition was admitted by this Court on 8.7.2016 and that on that day notice was also ordered to R-1 complainant. Though notice has been duly served on R-1, the said party has not entered appearance. This Court had adjourned the matter on various dates so as to ascertain whether R-1 is entering appearance.
Later, the matter was heard.
4. Heard Sri.V.Philip Mathews, learned counsel appearing for the revision petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2. As mentioned hereinabove, there is no appearance for R-1 in spite of due service of notice on her.
5. During the trial, the complainant has got herself examined as PW-1. PW-1 has deposed broadly in consonance with the contents in the complaint. The specific stand of the defence taken during cross- examination of PW-1 was to the effect that the accused did not have any transaction with the complainant and that she had never issued the cheque in question to the complainant. Further that the accused had taken a personal loan of Rs.30,000/- from Sri.Prasanth, who is son-in-
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Crl.R.P.No.912 Of 2016 law of the complainant, and she had paid Rs.1,500/- monthly as interest to him and thereafter she paid a lumpsum amount of Rs.10,000/- and that some amounts in that regard was due for payment to Sri.Prasanth. That at the consignment of the said loan transaction with Sri.Prasanth, the accused was constrained to give a blank signed cheque to him as security for the said loan transaction. That on coming to know that the accused's son had remitted some amounts from his Gulf country to the account of the accused, the complainant had misused the above cheque obtained from her son-in-law and presented the cheque amount for instituting the present complaint, etc. It has been clearly admitted by none other than PW-1 in cross-examination that she had earlier presented Ext.P-1 cheque and that on 12.12.12 she had encashed the full amount of Rs.75,000/- covered by the cheque. Later, when the accused had come to know of it, she had given a complaint to the police authorities about the unlawful use of her cheque by the complainant. DW-1 (bank manager) has deposed that though the amount of Rs.75,000/- was initially debited from the account of the accused on 12.12.2012, later, the bank had credited the said amount of Rs.75,000/-
to the account of the accused on 13.12.2012. Ext.D-1 statement of ::5::
Crl.R.P.No.912 Of 2016 bank account of the accused which was proved through DW-1 would show that on 12.12.2012 Ext.P-1 cheque number 757714 was encashed and that the said amount of Rs.75,000/- was debited from the account of the accused and that later on 13.12.2012, the said amount of Rs.75,000/- was credited to the account of the accused and further it is noted therein that Ext.P-1 cheque No.757714 has been returned and treted as 'set hold'', etc. It appears that it is thereafter that Ext.P-2 dishonour memo dated 13.12.2012 was issued by the bank stating that the cheque has been returned due to the stop payment instruction given by the accused. The accused contended that as the cheque was initially passed and the amount was debited from the accused's account and later due to the bonafide disputes raised by the accused, the complainant herself had given back the cheque to the bank, who had credited the said amount to the accused's account and then had taken a stop payment instruction from the accused and it is on this basis, the cheque was subsequently returned to the complainant due to the stop payment instruction of the accused. That since stop payment instruction has been issued by the accused on account of the bonafide disputes between the parties and as the cheque was initially passed on ::6::
Crl.R.P.No.912 Of 2016 12.12.2012, it was contended by the accused that no offence under Sec.138 of the N.I.Act has been made out or at any rate, since the accused has got bonafide reasons for issuing stop payment memo and admittedly as the account contained more than sufficient funds to cover the cheque amount and Rs.75,000/- accused has proved her contra case to rebut the statutory presumption and therefore she is entitled for acquittal, etc. However, both the courts below have taken the stand that the complainant has proved her case and that the accused has not rebutted statutory presumption, etc., On this ground, both the courts below have taken the view that she is libale for conviction for the above said offence.
6. On a meticulous consideration of various relevant aspects of the matter, this Court has reached the considered view that both the courts below have committed serious illegality in taking the view that the accused has not rebutted the statutory presumption. Further, this Court is of the view that crucial and relevant evidentiary aspects of the matter have been blatantly overlooked by the courts below and the accused is clearly entitled for acquittal in this case. The reasonings that have been arrived at by this Court are dealt with hereinafter. As noted ::7::
Crl.R.P.No.912 Of 2016 hereinabove, the specific defence taken by the accused was that she had never entered into any transaction directly with the complainant and that she had never issued Ext.P-1 cheque in favour of the complainant. But her specific contra case was to the effect that she had a loan transaction of Rs.30,000/- with Sri.Prasanth, son-in-law of the complainant, and that she had repaid Rs.10,000/- and various amounts by way of interest and some amounts were due in that regard and in connection with the loan transaction, she was forced to give a blank signed cheque as security to Sri.Prasanth,which has been misused by the complainant. It is even the case of the complainant that both parties are related. It is the further case of the accused that when the complainant and Prasanth came to know that more than Rs.2 lakhs was recently remitted to the account of the accused by her son from Gulf country, the complainant has misused the above cheque by obtaining it from Prasanth and presented it before the bank for instituting the present complaint, etc . It is highly relevant to note that the accused has taken the specific case in Ext.P-6 reply issued as early on 31.12.2012 (in reply to Ext.P-3 statutory demand notice dated 17.12.2012) about her contra case of loan transaction with Prasanth and that she had made various ::8::
Crl.R.P.No.912 Of 2016 repayments to the said Prasanth and outstanding amount of Rs.20,000/- was subsisting and that due to her financial constrain she had defaulted in paying the interest on October and November, 2012 and that this led to the complainant frequently abusing the accused and when the son of the accused had transferred Rs.2 lakhs from his Gulf account to the account of the accused and when she visited her bank on 13.12.2012, she came to know for the first time that an amount of Rs.75,000/- has been withdrawn from her account from the above cheque bearing No.757714 and that the said amount was withdrawn on 12.12.2012 by the complainant and that the accused had then filed a petition before the police authorities and that later the said amount was credited in her account, etc. All the details of the definite case of the accused have been meticulously stated in Ext.P-6 reply notice including the fact that Ext.P-1 cheque was initially given as a blank signed chque as security to Prasanth, son-in-law of the complainant. In spite of the details shown in Ext.P-6 reply notice as early as on 31.12.2012, the complainant's sworn affidavit under Sec.200 preliminary enquiry process as well as the affidavit filed by PW-1 (complainant) in lieu of chief examination are conspicuously silent even about the facts that Ext.P-1 cheque was ::9::
Crl.R.P.No.912 Of 2016 initially passed and the amount was debited from the account of the accused on 12.12.2012 and that later due to the complaint made by the accused to the police, the complainant had given back the cheque to the bank who had credited the amount of Rs.75,000/- to the account of the accused and it was thereafter that the cheque was returned by the bank to the complainant due to the stop payment memo issued by the acused. Suppression of these crucial facts has to be viewed very seriously. As held by this Court in the case K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233 = 2016 (4) KHC 901 that suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear and they want to develop a story after knowing the defence that may be set up by the opposite party and the doors of the court should be closed to such fortune seekers. So also, this Court held in para 20 of K.K.Divakaran's case (supra) that in a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But ::10::
Crl.R.P.No.912 Of 2016 unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution and an accused in a complaint case filed under Sec.142 of the N.I.Act also is entitled to know before the trial the particulars of the accusation against him and that suppression of these particulars in the complaint alone is sufficient to order his acquittal. It will be profitable to refer to paras 18 to 20 of K.K.Divakaran's case (supra) which read as follows:
"18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the dishonour of the cheque and demanding payment of the amount covered by it. Neither the nature, nor the date of the transaction between the parties nor the date of issuance of the cheque was disclosed in it. There was only a bald statement that the revision petitioner issued a cheque bearing the date 11.1.1999 for Rs.2,55,000/- in discharge of a debt. There is no explanation why these material facts were not disclosed in the statutory notice. Suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear.
They want to develop a story after knowing the defence that may be set up by the opposite party. The doors of the court should be closed to such fortune seekers.
19. In the complaint also neither the nature, nor the date of the transaction between the parties is mentioned. The only addition made in the complaint is that the date of issuance of cheque is 14.9.1998. For the first time it was in her evidence the 2nd respondent (PW1) disclosed that the transaction between the parties was a loan of Rs.1,95,000/-. In answer to a leading question put in the examination in chief she stated that the transaction was after the marriage between her daughter Sulatha and the revision petitioner's son Pradeep, which was solemnised on 23.1.1998. She testified that the revision petitioner requested for a loan of Rs.3 lakh one week after the marriage of Sulatha and Pradeep and she paid him Rs.1= lakh on 9.4.1998 and Rs.45,000/- on 8.5.1998. The amount mentioned in the cheque is Rs.2,55,000/- though the loan amount was only Rs.1,95,000/- Rs.60,000/- is said to be interest. How the interest was ::11::
Crl.R.P.No.912 Of 2016 calculated will be considered later. Her story is that in August 1998 she made a demand for repayment of the amount and then the revision petitioner undertook to pay the amount in January 1999; the 2nd respondent insisted on getting a cheque and a document from the revision petitioner; on 14.9.1998 at her residence at Pampadi the revision petitioner executed Ext.P1 cheque and Ext.P8 undertaking.
20. In a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal."
Therefore this Court is of the considered view that suppression of these crucial and material facts in the complaint has to be viewed very seriously and that the complainant has approached the court of law with unclean hands and therefore, on this ground the accused is entitled for acquital. However, other aspects of the matter are also adverted as noted hereinafter.
7. It has clearly come out from the cross-examination of PW-1 as well as in the evidence given by DW-1 (Manager), that Ext.P-1 cheque dated 10.12.2012 after its presentation was initially passed by the bank and the full amount of Rs.75,000/- was duly debited from the account of the accused. Further it is also clear from the cross- examination of PW-1 as well as from Sec.313 statement of the accused ::12::
Crl.R.P.No.912 Of 2016 and Ext.P-6 reply notice of the accused that on coming to know of the passing of Ext.P-1 cheque, the accused on 13.12.2012 approached the police authorities against the complainant presenting Ext.P-1 cheque. PW-1 stated that both parties were called to the Police Station and that the accused had submitted that she is prepared to pay the amount due to Prasanth and not anything more and that the Sub Inspector of Police has specifically appraised both parties that the police is disabled from examining the mutual allegations as it is a monetary transaction, etc. In chief examination of PW-1 has completely suppressed about passing of Ext.P-1 cheque on 12.12.2012 and her only case is the version as if the cheque was presented and dishonoured due to the stop payment memo issued by the accused and therefore it constitute an offence under Sec.138 of the N.I.Act. In the cross-examination she would admit that the cheque was initially passed on 12.12.2012 and that the amount of Rs.75,000/- was debited from the account of the accused in the latter portion of cross-examination of PW-1. That she was not aware as to whether the amount was again credited to the account of the accused. At any rate, PW-1 does not say in her further evidence in the cross- examination that she had returned back the cheque to the bank and ::13::
Crl.R.P.No.912 Of 2016 that the amount was credited to the accused and later the bank had returned the cheque to the complainant due to the stop payment memo issued by the accused, etc. The evidence of PW-1 as well as Ext.D-1 statement of account would show that Ext.P-1 cheque was passed on 12.12.2012 and the amount of Rs.75,000/- was debited from the account of the accused and that later, on 13.12.2012 the same amount of Rs.75,000/- was again credited to the account of the accused and then Ext.P-1 cheque bearing No.757714 was treated as 'set hold', etc. The other circumstantial evidence based on Ext.P-2 dishonour memo dated 13.12.2012 as well as clear and cogent stand of the accused in Ext.P-6 reply notice as well as Sec.313 statement would show that after the passing of the cheque on 13.12.2012, the complainant herself had given back the cheque to the bank, who credited the amount of Rs.75,000/- to the account of the accused and later the cheque was treated as 'set hold' and the bank had taken the stop payment instructions from the accused and based on that Ext.P-1 cheque was formally returned to the complainant due to the stop payment instruction, etc. These aspects would show clearly and categorically that Exhibit P1 cheque was initially passed on 12.12.2012. Later, the ::14::
Crl.R.P.No.912 Of 2016 accused had made a complaint to the police authorities and both parties were summoned to the police station and the Sub Inspector of Police appraised both sides that they cannot interfere with the monetary dispute. Later, the Bank themselves had credited the amount of Rs.75,000/- covered by Ext.P-1 cheque to the account of the accused and had treated Ext.P-1 cheque as 'set hold' (as evidenced by Ext.P-1). As per the version of the accused, the Bank had instructed her to give a stop payment memo which was given. It is on account of this stop payment memo given only later that the Bank had returned Ext.P-1 cheque formally to the complainant on 13.12.2012 along with Exhibit P2 dishonour memo dated 13.12.2012 on account of the stop payment memo issued by the accused. In the light of these factual aspects as Ext.P-1 cheque was initially passed on 12.12.2012 itself, it is seriously open to doubt as to whether an offence under Sec.138 of the Negotiable Instruments Act is made out against the accused. Even if it is assumed that Ext.P-2 dishonour memo dated 13.12.2012 would result in the commission of offence punishable under Sec.138 of the Negotiable Instruments Act, the following crucial aspects would lead to the acquittal of the accused in the facts and circumstances of this case.
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Crl.R.P.No.912 Of 2016
8. The specific case of the accused which has been substantially proved through the cross examination of none other than PW-1 is that right from the beginning (as evidenced from Ext.P-6 reply notice dated 31.12.2012) was that she never had any transaction with the complainant. But that transactions were entirely with the complainant's son-in-law Sri.Prasanth, from whom she had taken a loan of Rs.30,000/-. That, at that time she was forced to give Ext.P-1 cheque bearing No.757714 as a blank signed cheque to Sri.Prasanth as security and that later she had paid Rs.10,000/- and various interest amounts and that she had defaulted to pay interest on October and November 2012 and that outstanding amount is to be paid to the complainant's son-in-law, etc. When it has come out clearly in evidence that when the accused had come to know on 13.12.2012 that Ext.P-1 cheque was passed in favour of the complainant and that an amount of Rs.75,000/- was debited from her account on 12.12.2012, she had immediately made her protest to the Bank as well as to police authorities. The police authorities had summoned both parties and had later informed them that Police cannot interfere in the matter. The evidence of DW-1 as well as Ext.D-1 would clearly show that the Bank ::16::
Crl.R.P.No.912 Of 2016 thereafter has credited the amount of Rs.75,000/- to the account of the accused and had treated Ext.P-1 cheque as "set hold". Later, based on the stop payment memo issued by the accused, the Bank had issued Ext.P-2 dishonour memo dated 13.12.2012 to the complainant, etc. Therefore, the accused could establish a strong case that she had a bonafide dispute regarding the passing of the cheque in favour of the complainant. These bonafide disputes raised by the accused had led to the issuance of the dishonour memo on account of the stop payment instructions. This should be seriously reckoned from point of view of the crucial fact that the complainant has suppressed even the details given in Ext.P-6 reply notice, in her complaint, Section 200 sworn affidavit as well as in her chief examination. The very act of the complainant is suppressing these crucial aspects, would lead to a serious inference that even the complainant was under the impression that the accused was having a truthful defence. Therefore, when the accused has raised a bonafide and substantial dispute regarding the very entitlement of the complainant to receive the cheque amount, to get Ext.P-1 cheque passed, the accused has been clearly able to prove her contra-case. True that the cheque is drawn from the account of the ::17::
Crl.R.P.No.912 Of 2016 accused and the signature is that of the accused. It is admitted by her. Therefore, in the light of the legal principles laid down in a catena of rulings especially as in T.Vasanthakumar v. Vijayakumari reported in 2015 (8) SCC 378, the statutory presumption could be drawn in terms of Sec.139 as well as Sec.118(a) of the Negotiable Instruments Act regarding that the holder of the cheque has received the cheque for discharge of any debt or liability and that the cheque is supported by consideration. But certainly this is a presumption which is rebuttable and as repeatedly held by the Apex Court and this Court in various rulings, the accused is certainly entitled to rebut his presumption on the basis of preponderance of probability either by drawing from the contradictions in the evidence tendered on behalf of the complainant or by adducing independent evidence. In this case, on going through the entire factual matrix, including the cross examination of PW-1, the evidence of DW-1, Ext.D-1, Ext.P-7 reply notice, Sec.313 statement would all unerringly point to the direction that the accused has certainly raised a strong probable and credible contra case that she did have a bonafide and substantial dispute regarding the very entitlement of the complainant getting Ext.P-1 cheque passed. Therefore, the ::18::
Crl.R.P.No.912 Of 2016 accused has certainly been successful to rebut the statutory presumption and if that be so, the burden has fully shifted to the complainant to prove her case on the basis of proof beyond reasonable doubt. After the said rebuttal of the statutory presumption, the complainant has miserably failed to bring in an iota of evidence to prove her discharge.
9. The onus to prove a contra case as to the valid reasons that the accused had issued stop payment memo, is certainly on the accused. The law on that point is clear. The legal principles laid down by the Apex Court in various rulings have been dealt with in a well reasoned judgment of this Court in the judgment in Narayanan v. State of Kerala reported 2009 (3) KLT 1012, para 4, which reads as follows :
'4..............Or in other words the case advanced by the accused was that necessary ingredients of Sec.138 of the N.I. Act having not been pleaded in the complaint, the Court should not have taken cognizance of the offence. In the similar way, the accused in that case also contended that mere endorsement of the bank "payment stopped" was not sufficient to entertain the complaint as that was ot the ingredient of the offence under Sec.138 of the Act. Repelling both these contentions as unworthy of any merit, the Apex Court held that any interpretation of S.138 of the N.I.Act as canvassed by the accused would render it a dead letter. The observations made in the decisions, Electronics Trade & Technology Development Corporation Ltd. v. Indian Technologists & Engineers (Electronics) (P) Ltd. (1996 (1) KLT SN 19 (C. No.25) SC = (1996) 2 SCC 739) and K.K. Sidharthan v. T.P. Praveena Chandran (1997 (1) KLT 6 = (1996) 6 SCC 369), which lend support to the proposition canvassed by the learned counsel have been found to be not laying down the law correctly by the Apex Court. In the decisions, Modi Cements Ltd. v. Kuchil Kumar Nandi (1998 (1) KLT 582 (SC) = (1998) 3 SCC 249) and, later, in M.M.T.C. Ltd. & Anr. v. Medchl Chemicals and ::19::
Crl.R.P.No.912 Of 2016 Pharma (P) Ltd. & Anr. (2002 (1) KLT SN 37 (C. No. 44) SC = (2002) 1 SCC 234), after examining the question whether a stop payment instruction by the drawer leading to dishonour of the cheque would constitute an offence under S. 138 of the N.I.Act, the Apex Court has held that the burden was on the accused to prove that dishonour of the cheque issued by him was not due to insufficiency of funds, and there was valid cause including absence of any debt or liability for the stop payment. In Goaplast Pvt. Ltd. v. Chico Ursula D'Souza (2003 (2) KLT 16 (SC)), the Apex Court has held in unmistakable terms that S.138 of the N.I.Act is attracted to cases where the drawee bank is directed to stop payment. The Apex Court has held thus: "Once such a cheque is issued by the drawer, the presumption under S.139 of the N.I.Act must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment, it will not preclude an action under S.138 of the N.I.Act by the drawee or the holder of the cheque in due course" In the light of the judicial pronouncements as above, it is too late in the day to canvass the proposition that a stop payment instruction by the drawer to the bank leading to dishonour of a cheque would not constitute an offence since that Section contemplates only of dishonour of the instrument due to insufficiency of funds or exceeds arrangement. The decision Bhageerathy v. Beena (1992 (2) KLT 31) and Ashok v. Vasudevan Moosad (1993 (1) KLT 671) cannot be considered as having laid down the correct principles in view of the later judicial pronouncements by the Apex Court as indicated above. Similarly, the view taken by the Apex Court in K.K. Sidharthan v. T.P.Praveena Chandran (1997 (1) KLT 6 = (1996) 6 SCC 369), that issue of the cheque at the time when there was sufficient balance in the accounts would not constitute an offence has been held to be not laying the good law by the Apex Court in the later pronouncements already indicated above. The judicial pronouncements by the apex court in Modi Cements Ltd. v. Kuchil Kumar Nandi (1998 (1) KLT 582 (SC) = (1998) 3 SCC 249), M.M.T.C. Ltd. & Anr. v. Medchl Chemicals and Pharma (P) Ltd. & Anr. (2002 (1) KLT SN 37 (C. No. 44) SC = (2002) 1 SCC 234) and Goaplast Pvt. Ltd. v. Chico Ursula D'Souza (2003 (2) KLT 16 (SC)), it is noticed, have not been brought to the notice of the learned Judge who rendered the decision in Chackochan T.K. v. P.P.Paul & Anr. (2008 (4) KHC 922), expressing the view that the complainant has to plead and prove that the stop payment instruction was issued to circumvent penal liability under S.138 of the N.I.Act. That view, with respect, run counter to the decisions of the Apex Court, referred to above, which have laid down the principle that the burden was on the accused when a cheque issued by him got dishonoured on his stop payment instruction that he had sufficient funds to clear the amount under the instrument and the stop payment instruction was given for other valid reasons. The principle laid down by the Apex Court casting the burden on the accused under the circumstances referred to is succinctly stated thus in M.M.T.C. Ltd. & Anr. v. Medchl Chemicals and Pharma (P) Ltd.
& Anr. (2002 (1) KLT SN 37 (C. No. 44) SC = (2002) 1 SCC 234):
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Crl.R.P.No.912 Of 2016 "If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under S. 138 would not be made out. The important thing is that the burden of so proving would be on the accused." (underline supplied)"'
10. In the celebrated case in Laxmi Dyechem v. State of Gujarat reported in (2012) 13 SCC 375 = 2013 (1) KLT 167 SC, it has been categorically held in the concurrent judgment of Justice Gyan Sudha Misra that Sec.138 is not to punish those who refuse to discharge the debt for bonafide and sustainable reasons. That it was held in MMTC Ltd & anr. v. Medchl Chemicals & Pharma (P) Ltd. & anr. reported in (2002) 1 SCC 234 that cheque dishonour on account of drawer's stop payment instruction constitutes an offence under Sec.138 of the Negotiable Instruments Act, but that it is subject to the rebuttable presumption under Sec.139 of the N.I.Act as the same can be rebutted by the drawer even at the first instance and it was also held therein that in order to establish presumption under Sec.139 of the N.I.Act, the accused has to show that the dishonour was not due to insufficiency of funds, but there was a valid cause, including the absence of any debt or liability of the stop payment instruction to the Bank. But that the important thing is that the burden of so proving would be on the ::21::
Crl.R.P.No.912 Of 2016 accused. It will be profitable to refer to paras 8 to 10 of the said concurrent judgment in Laxmi Dyechem v. State of Gujarat reported in (2012) 13 SCC 375 = 2013 (1) KLT 167 SC which read as follows:
'8. From the above, it is manifest that a dishonour would constitute an offence only if the cheque is retuned by the bank 'unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. The High Court was of the view and so was the submission made on behalf of the respondent before us that the dishonour would constitute an offence only in the two contingencies referred to in S.138 and none else. The contention was that S.138 being a penal provision has to be construed strictly. When so construed, the dishonour must necessarily be for one of the two reasons stipulated under S.138 and none else. The argument no doubt sounds attractive on the first blush but does not survive closer scrutiny. At any rate, there is nothing new or ingenious about the submission, for the same has been noticed in several cases and repelled in numerous decisions delivered by this Court over the past more than a decade. We need not burden this judgment by referring to all those pronouncements. Reference to only some of the said decisions should, in our opinion, suffice.
9. In NEPC Micon Ltd. v. Magma Leasing Ltd. (1999 (2) KLT SN 39 (C.No.45) SC = (1999) 4 SCC 253), the cheques issued by the appellant-company in discharge of its liability were retuned by the company with the comments 'account closed'. The question was whether a dishonour on that ground for that reason was culpable under S.138 of the Negotiable Instruments Act. The contention of the company that issued the cheque was that S.138 being a penal provision ought to be strictly construed and when so interpreted, dishonour of a cheque on ground that the account was closed was not punishable as the same did not fall in any of the two contingencies referred to in S.138.
This Court noticed the prevalent cleavage in the judicial opinion, expressed by different High Courts in the country and rejected the contention that S.138 must be interpreted strictly or in disregard of the object sought to be achieved by the statute. Relying upon the decision of this Court in Kanwar Singh v. Delhi Administration (AIR 1965 SC 871), and Swantraj v. State of Maharashtra ((1975) 3 SCC 322) this Court held that a narrow interpretation of S.138 as suggested by the drawer of the cheque would defeat the legislative intent underlying the provision. Relying upon the decision in State of Tamil Nadu v. M.K. Kandaswami ((1975) 4 SCC 745), this Court declared that while interpreting a penal provision which is also remedial in nature a construction that would defeat its purpose or have the effect of obliterating it from the ::22::
Crl.R.P.No.912 Of 2016 statute book should be eschewed and that if more than one constructions are possible the Court ought to choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile. The Court relied upon the much quoted passage from the Seaford Court Estates Ltd. v. Asher (1949 2 All E.R. 155) wherein Lord Denning, L.J. observed:
"The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act iswoven, but he can and should iron out the creases."
10. Relying upon a three-Judge Bench decision of this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi (1998 (1) KLT 582 (SC) = (1998) 3 SCC 249), this Court held that the expression "the amount of money ............. is insufficient to honour the cheque" is a genus of which the expression 'account being closed' is a specie.'
11. In the light of these legal principles, this Court is of the considered view that the accused has been able to substantiate and establish a strong credible and probable case that she had a valid and bonafide dispute regarding the very entitlement of the complainant to get Ext.P-1 cheque passed and that is the reason why she had subsequently given the stop payment instruction to the Bank. Since the statutory presumption which has been effectively rebutted by her ::23::
Crl.R.P.No.912 Of 2016 based on the preponderance of probabilities, the burden was on the complainant who has visibly failed to discharge the act. In the light of these aspects, the accused is certainly entitled for acquittal and therefore, the conviction of the petitioner on account of the non consideration of these crucial and relevant aspects by the courts below is a grave illegality and perversity. Therefore, this Court is constrained to exercise its jurisdictional powers to interfere with the judgments of the courts below. Accordingly, it is ordered that the impugned judgments of both the courts below are set aside. The accused is acquitted of the offence under punishable Sec.138 of the Negotiable Instruments Act and she is set at liberty.
The Criminal Revision Petition stands allowed as indicated above.
ALEXANDER THOMAS, Judge.
bkn/csl