Kerala High Court
Raju M.Thomas vs State Of Kerala on 23 November, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA,
1942
Crl.Rev.Pet.No.2777 OF 2007
CRA 114/2004 OF ADDITIONAL SESSIONS COURT-I, MAVELIKKARA
CC 483/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
CHENGANNUR
REVISION PETITIONER/S:
RAJU M.THOMAS, S/O THOMAS,
PROPRIETOR, NANDAVANAM TIMES, NANDAVANAM
JUNCTION, CHENGANNUR, RESIDING AT PUTHEN
VEEDU, THITTAMEL,CHENGANNUR.
BY ADV. SRI.P.HARIDAS
RESPONDENT/S:
1 STATE OF KERALA
PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.
2 T.M.THILAKARAJAN, S/O.MADHAVAN
SITHARA VEEDU, OONNUKAL P.O, PATHANAMTHITTA.
R1 BY ADV. SRI.B.BALRAJ
R1 BY ADV. PUBLIC PROSECUTOR
R1 BY ADV. SRI.SAJJU.S
R1 BY ADV. SRI. K.SHAJ
OTHER PRESENT:
SR.PP.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 20-11-2020, THE COURT ON 23-11-2020 PASSED THE
FOLLOWING:
CRRP No.2777/2007
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O R D E R
This criminal revision petition is directed against the judgment dated 23.11.2006 rendered by the Additional Sessions Court-I, Mavelikkara, in Crl.Appeal No.114 of 2006, whereby the learned Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, 'NI Act') rendered by the trial court to undergo simple imprisonment for a period of three months and also to pay a compensation of Rs.2,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months more under Section 138 of the NI Act.
2. The revision petitioner was the accused in CC No.483 of 2004 on the file of the Judicial First Class Magistrate Court-I, Chengannur and CRRP No.2777/2007 ..3..
the appellant in Crl.Appeal No.114 of 2006 on the file of the Additional Sessions Court-I, Mavelikkara. The 1st respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the NI Act against the accused. Upon consideration of the complaint, the learned magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the NI Act and the case was taken on file as CC No. 483 of 2004. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated.
3. It is the case of the complainant that the accused issued two cheques bearing Nos. 042385 and 042386 dated 27.04.2004 for Rs.1,00,000/- each drawn on the account maintained by the CRRP No.2777/2007 ..4..
accused with the Union of India, Chengannur Branch in favour of the complainant. The complainant presented the cheques for encashment through the Corporation Bank, Pathanamthitta Branch, but, the cheques were dishonoured for want of sufficient funds. Statutory notice was issued on 21.05.2004 to the accused calling upon him to pay the amount. The accused received the notice. However, he had neither sent a reply nor paid the amount covered under the cheques. Hence, the complaint.
4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P6 on prosecution side. After PW1 had been examined, the accused was questioned under Section 313(1)(b) of the Code CRRP No.2777/2007 ..5..
of Criminal Procedure for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the incriminating circumstances. The accused submitted that he borrowed an amount of Rs.2,00,000/- from the complainant and his wife on 15.02.1999. The accused further submitted that at the time of borrowing the amount, he issued two blank cheques as security for the amount and thereafter, he repaid the whole amount with interest. In support of the defence, DW1 was examined and marked Exts.D1 and D2. Ext.D1 is the reply notice and Ext.D2 is the receipt showing the dispatch of Ext.D1.
5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for want of sufficient funds. The complainant issued CRRP No.2777/2007 ..6..
statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. It has come out in evidence that the accused failed to pay the amount covered under the cheques within fifteen days from the date of receipt of the statutory notice. All other statutory formalities have been complied with. Hence, the learned magistrate concluded that the cheque was issued by the accused for the discharge of debt or liability.
6. Heard Sri.P.Haridas, the learned counsel for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 1st respondent-State.
7. In order to determine the question whether the offence punishable under Section 138 of the NI Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the NI Act and the presumptions CRRP No.2777/2007 ..7..
to be raised as envisaged by the provisions of Sections 118 and 139 of the NI Act. Section 118 of the NI 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 NI 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 NI Act provides that it shall be presumed, unless the contrary is proved, that the holder of a CRRP No.2777/2007 ..8..
cheque received the cheque of the nature referred to in Section 138 of the NI 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 NI Act, it becomes evident that in a trial under Section 138 of the NI 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. Needless to say 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 NI Act are very much available to the complainant and the burden shifts on the CRRP No.2777/2007 ..9..
accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing 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.
8. In this case, in order to prove the case of the complainant, PW1 was examined. According to him, the accused borrowed money from the him and issued Exts.P1 and P2 cheques for an amount of Rs.1,00,000/- each to the complainant for the discharge of a debt and when the cheques were presented for collection, they were returned for want of CRRP No.2777/2007 ..10..
sufficient funds. The complainant issued Ext.P5 notice calling upon the accused to pay the amount within fifteen days. According to the accused, the transaction was taken place on 15.02.1999. In Ext.D1 reply, he had stated that the accused borrowed an amount of Rs.2,00,000/- on 28.09.1999 from the complainant and his wife. In Ext.D1, he further contended that he had repaid an amount of Rs.3,22,000/- to the complainant in 62 instalments. According to him, the accused repaid another sum of Rs.4,20,000/- in 56 instalments. On being questioned under Section 313(1)(b) of the Code of Criminal Procedure, the accused stated that altogether, he paid an amount of Rs.7,92,000/- to the complainant and his wife. It is true that the accused had set up the plea of discharge. In this connection, it is pertinent to note that the accused had admitted execution of the cheques. The only CRRP No.2777/2007 ..11..
contention is that he had discharged the amount covered under Exts.P1 and P2 cheques. Oral evidence adduced by DW1 is not sufficient to prove the plea of discharge advanced by him. No reliable evidence is adduced to prove that the amount covered under the cheques was repaid to the complainant.
9. Relying on Divakaran v. State of Kerala [2016 (4) KLT 233], the learned counsel for the revision petitioner contended that the details of the cheques and the transaction covered therein are not mentioned in Ext.P5 statutory notice. The learned counsel further contended that material facts were not disclosed in the statutory notice. The decision cited by the learned counsel for the revision petitioner has no application in this case. In the case on hand, the accused sent Ext.D1 reply pursuant to the receipt of statutory notice after fully understanding the nature of the CRRP No.2777/2007 ..12..
transaction between the parties. The cheque numbers are also stated.
10.It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for the discharge, in whole or in part, of any debt or other liability. 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. That apart, the accused CRRP No.2777/2007 ..13..
has no case that the cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability.
11.The learned counsel for the accused placed reliance on the decision reported in Santhi C. v. Mary Sherly & Another [2011 (3) KHC 22] and contended that issuance of a blank signed cheque would not amount to issuance of cheque and the issuance of a blank cheque can only be treated as a cheque leaf. This decision is to be evaluated in the light of the dictum in Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]. In the said decision, the Supreme Court held that in view of Section 139 of the NI Act read with Section 118 of the NI 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 CRRP No.2777/2007 ..14..
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."
In view of the decision in Bir Singh's case (supra), the dictum in Santhi's case (supra) in respect of a blank signed cheque cannot be followed.
12.In view of the above, both the trial court and the appellate court rightly held that the burden was on the accused to disprove the initial presumption under Sections 118 and 139 of the NI Act. The burden is not discharged CRRP No.2777/2007 ..15..
rightly. The complaint was filed before the trial court in 2007. The complainant has been prosecuting this case for the last 16 years.
13.Coming to the question of sentence, Exts.P1 and P2 cheques were executed as early as on 27.04.2004. The accused has been conducting this criminal case for the last 16 years. In Kaushalya Devi Massand v. Roopkishore Khore [2011 KHC 281], the apex court held that jail sentence is not mandatory in an offence under Section 138 of the NI Act. Considering the facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed.
In the result, the criminal revision petition is partly allowed. The conviction against the accused under Section 138 of the NI Act is confirmed. The sentence is modified as follows:-
CRRP No.2777/2007
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The accused is sentenced to pay a fine of Rs.2,00,000/- (Rupees two lakh only) and in default of payment of fine to undergo simple imprisonment for a period of four months. In view of the situation prevailing in the country due to Covid-19 pandemic, the accused is given six months time from today to pay the fine amount. In case the fine amount is deposited by the accused before the trial court as ordered, the same shall be disbursed to the complainant as compensation in accordance with rules. In the event of failure to pay the fine amount, the trial court shall execute the sentence in accordance with law. Registry is directed to send back the records to the trial court for execution of sentence.
Sd/-
N.ANIL KUMAR JUDGE Bka/-