Kerala High Court
Revision vs M.K.Ajithkumar on 22 June, 2020
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942
Crl.Rev.Pet.No.240 OF 2005
CRA 205/2004 OF V ADDITIONAL SESSIONS COURT .ERNAKULAM
CC 1582/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI
REVISION PETITIONER/APPELLANT/ACCUSED
M.K.AJITHKUMAR, PROPRIETOR,
TRIPUTHI FILM, SWAMY MADATHIL,, C.P. UMMER ROAD, KOCHI-
35.
BY ADVS.
SRI.T.KURIAKOSE PETER
SRI.ABRAHAM P.GEORGE
RESPONDENTS/RESPONDENTS/COMPLAINANT
1 K.S.UNNI, H/N 5/265/A
KANAKKATHUSSERIL, AL-AMEEN SCHOOL ROAD,, EDAPALLY.
2 STATE OF KERALA REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
R1 BY ADV. SRI.KURIAN JOSEPH (ARAKKUNNAM)
OTHER PRESENT:
PP - SRI. C.K.PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-
06-2020, THE COURT ON 22-06-2020 PASSED THE FOLLOWING:
Crl.R.P.240/2005
2
ORDER
Dated : 22nd June, 2020
1. This revision petition has been filed aggrieved by the concurrent findings of guilt, conviction and sentence. Revision petitioner is the accused in a private complaint
2. First respondent/ complaint's case in short is as follows :
Revision petitioner/accused borrowed an amount of Rs.1,00,000/- from the first respondent/complainant and in discharge of the same, the revision petitioner/accused (hereinafter referred to as the accused) issued cheque No.278421 dated 21.3.2001 drawn on Vysya bank, M.G.Road branch. On presentation of the cheque it was dishonoured as per memo dated 22.3.2001 for the reason 'payment stopped' by the drawer. Thereafter the first respondent/complainant (hereinafter will be referred as the complainant) issued registered notice for which a reply was sent raising untenable contentions. Since the amount was not paid within the statutory period, the complaint was filed.Crl.R.P.240/2005
3
3. The complainant got himself examined as PW1 and Exts.P1 to P6 were marked from the side of the complainant. The accused was examined as DW1 and Exts.D1 to D8 were marked from ohis side. Thereafter on hearing both sides, the trial court found the accused guilty and sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs.1,00,000/- to PW1 in default to undergo simple imprisonment for two months. Against which Crl.Appeal 205/2004 was filed and the V Additional Sessions Court, Ernakulam by the impugned judgment, confirmed the conviction and sentence was modified reducing the substantial sentence to three months .
4. Aggrieved by the same,accused came up in revision for the various grounds stated in the memorandum of revision.
5. According to the learned counsel for the accused, the defence of the accused was that he borrowed Rs.5000/- on 17.3.1999 and Rs.10,000/- on 14.10.1999 and that amount with interest was re-paid on 2.3.2001. The above fact is proved through Ext.D6 account book kept in his office and stating the above facts, lawyer's notice was Crl.R.P.240/2005 4 issued which is marked as Ext.D7. Ext.D8 is the postal receipt proving the issuance of Ext.D7 notice to the complainant. But the above document and his evidence were not properly appreciated. According to the counsel, the evidence adduced from the side of the accused rebuts the presumptions available to the complainant under Secs 139 and 118 of the Negotiable Instruments Act, 1881 (hereinafter referred as the N.I.Act). But that also has not been given proper weightage. It is also his contention that in the notice and also in the complaint, no details of availing of the amount have been given in spite of the fact that the accused sent a lawyer's notice detailing the availment of amount of Rs.5,000/- and Rs.10,000/- and discharge of the liability and that caused prejudice to him.
6. The learned counsel for the complainant herein on the other hand would contend that all the documents produced from the side of the accused are self serving documents and Ext.D6 the alleged account book has been found to be a newly prepared one by the learned magistrate. It is not a one kept in the regular course of Crl.R.P.240/2005 5 business of the accused and is not an authenticated one. Hence no relevance can be placed upon it.
7. To prove the case of the complainant he himself was examined as PW1 and Ext.P1 cheque for Rs.1,00,000/- has been marked on his side. He deposed in chief examination with regard to the availment of Rs.1,00,000/- by the accused and issue of Ext.P1 cheque in discharge of the liability. He has been returned from gulf and the accused is a film distributor and the monetary transactions between them are admitted.
8. The dispute is with regard to the actual amount borrowed and the period during which it was borrowed. According to the accused, on 17.3.1999 Rs.5000/- was borrowed and on 14.10.1999 Rs.10,000/- was borrowed and he repaid the amount of Rs.15,750/- on 2.3.2001. According to him, the entire liability has been discharged. To prove the above contention, the accused mainly relies upon Ext.D6, the account book.
9. The learned counsel for the accused also took my attention to Ext.D7 lawyer notice sent by the accused prior to the issuance of Crl.R.P.240/2005 6 Ext.P4 lawyer notice sent by the complainant. In Ext.D7 notice the accused has given a detailed narration regarding the alleged borrowal of Rs.5000/- on 17.3.1999 and Rs.10,000/- on 14.10.1999 and receipt of blank signed cheques, stamp paper, signed white paper etc, by the complainant from him. It is also contended that in spite of repayment of the entire amount, the cheques were not returned and in Ext.D7 notice it is stated that the complainant is not entitled to keep the document obtained from him and to present the cheques for encashment. The learned counsel would also contend that in Ext.D6 the details regarding the purchase of stamp paper and Rs.50/- spent by him had also been entered. So according to the learned counsel, even prior to the initiation of the proceedings against him by the complainant, he had sent Ext.D7 notice and produced Ext.D6 account book substantiating his contention.
10. The learned counsel would also took my attention to the cross- examination of PW1 wherein when a specific question was put to him with regard to the availing of Rs.5000/- on 17.3.1999 and Rs.10,000/- on 14.10.1999, the complainant replied that money was Crl.R.P.240/2005 7 borrowed but he did not remember the amount and date. Further he produced the counter-foil of the cheque bearing No.278421 as Ext.D1 and also Ext.D2 the counter-foil of cheque No.278445. The learned counsel would contend that in both the counter foils, the name of complainant has been written and the amount of Rs.5000/- and Rs.10,000/- respectively have also been written.
11. But the counter-foils are written by the accused himself and as has been rightly pointed out by the courts below, both are self serving documents and can be created by anybody.
12. The learned counsel for the first respondent on the other hand took my attention to the fact that Ext.D7 notice is dated 21.3.2001 and that is exactly the date of Ext.P1 cheque also. So according to him after issuance of Ext.P1 cheque dated 21.3.2001, the accused cunningly issued Ext.D7 notice and if at all the liability was discharged on 2.3.2001, there is nothing preventing the accused to send Ext.D7 notice much earlier to 21.3.2001.
13. The date of issuance of Ext.D7 notice and the cheque date as 21.3.2001 appears to be a coincidence which the accused could not Crl.R.P.240/2005 8 successfully explain. More over, the specific case of the accused is that he has discharged the entire liability on 2.3.2001. According to the accused, he is a person keeping Ext.D6 account book with all entries with regard to his every monetary transaction. If such a person is discharging the liability due to a person with whom he had entrusted blank signed cheques, it cannot at any moment be imagined that he would omit to obtain any document to prove the discharge of liability like receipt or any endorsement on Ext.D6 book from the complainant. Merely because the complainant admitted about the availing of the amount and pleaded ignorance of the date on which the amount was borrowed, when a question was put to him regarding availment of Rs.5000/- and Rs.10,000/- on the two separate dates, it will not lead to an inference that the entire case put forward by the accused is proved by that admission.
14. Both the courts below were not inclined to accept Ext.D6 as an account book kept in the regular course of business. In this context, the learned counsel for the complainant took my attention to an observation made by the learned magistrate with respect to Crl.R.P.240/2005 9 Ext.D6 wherein it has been specifically stated in page No.5 paragraph No.19, that it has been prepared recently. So also it is not produced before any authorities prescribed under law and it is also not of the financial year.
15. On a close scrutiny of the evidence adduced from the side of the complainant and the accused in this case, what could be deducted is that the accused unlike in other cases, moved a step further and created documents so as to support the contention put forward by him. All the documents produced from his side are self serving documents and could be created by himself without intervention of anybody. There is no convincing materials whatsoever to prove that Ext.D6 account book kept by him is in the regular course of business so as to make it admissible in evidence. So also Ext.D7 notice bears the very same date of Ext.P1 cheque. That also leads to an inference that he moved a step forward to defend his case before the presentation of the cheque by the complainant. So no reliance can be placed on Exts.D1 to D7 and evidence of DW1.
Crl.R.P.240/200510
16. The learned counsel also contended that in the lawyer notice or in the complaint, no details regarding the transaction between the parties had been given and even though Ext.D6 notice was sent prior to the issue of Ext.P4 notice by the complainant, there is no whisper with regard to the allegation in Ext.D7 in Ext.P4 and he has also not denied the allegations in Ext.D7 while sending Ext.P4 and the complaint also lacks pleading with regard to the transaction or whether the cheque issued was a post dated one etc. The learned counsel took my attention to Divakaran K.K. v. State of Kerala ( 2016 (4) KHC 901) wherein while dealing with Sec.138 of the N.I.Act, it has been held that absence of entry of the date of transaction between the parties nor the date of issuance of cheques disclosed in the notice is fatal to the case of the complainant and such suppression of material facts relating to the transaction in the notice is done with a view to develop a story after knowing the defence that may be put up by the opposite party.
17. But it is relevant in this context to quote Central Bank Of India v. M/S Saxon Farms (AIR 1999 SC 3607) wherein it has Crl.R.P.240/2005 11 been held that under clause (b) of the proviso to S.138 of the N.I. Act, the requirement is only that the notice to be issued within 15 days of the receipt of the information from the Bank regarding the return of the cheque as unpaid and a demand for payment of the amount of the cheque also to be made.
18. In Surendra Das B v. State of Kerala & another (2019 (3) KHC 105) this court has held that omission or error in the notice to mention about the nature of debt or liability will not make the notice invalid and there is no statutory mandate that the notice shall narrate the nature of the debt or liability. It is also stated in para 7 of the said judgment that service of notice of demand is a condition precedent for filing a complaint for an offence under Sec.138 of the N.I.Act and it is also stated that a demand for payment of the amount of the cheque by sending a notice in writing is sine qua non for filing such a complaint and in the notice demand has to be made for the cheque amount and if no such demand is made, the notice would fall short of its legal requirement.
19. In this case, notice has been issued within the 15 days and Crl.R.P.240/2005 12 there is specific demand of the amount also and hence notice sent is perfectly legal and proper.
20. The learned counsel also took my attention to Ramachandran S. v. B.Bhanuvikraman Nair (2017 (5) KHC 75) wherein it has been held that admission of signature in the cheque will not be sufficient to prove the execution of the cheque. It is also held that admission of signing of blank cheque leaf is not admission of receiving any amount from the complainant or that the accused issued cheque to the complainant and the complainant is bound to adduce evidence to prove execution of the cheque.
21. In this case it is to be noted that the case of the accused is not of total denial. He has set up a defence that the amount borrowed is Rs.5000/ and Rs.10000/ as narrated earlier and that amount has been repaid and in spite of that, complainant is keeping the blank cheques. The said contention has already been found against. So this is a case in which complainant through PW1 and Ext.P4 cheque could establish the issue of cheque by the accused. Once the issue of cheque is proved, the presumption under Sec.139 of Crl.R.P.240/2005 13 the NI Act comes to the rescue of the complainant. The position is well settled as per the dictum laid down in Hamsa Mussaliar v. Hamsa Khan and another (2014 (4) KHC 883) wherein it has been held that once execution of cheque is proved by the complainant, the burden is heavy on the accused to prove the circumstances under which cheque reached the hands of complainant. It is also held, failure of accused to prove the circumstances cast a serious doubt on the defence case of the accused and court would be justified in believing the case of the complainant by relying on the presumption under Sec.139 of the NI Act.
22. It is also relevant in this context to quote Devan v. Krishna Menon (2010 (2) KLT 397). It is held therein that once signature, execution and handing over of the cheque are satisfactorily proved by the evidence of the complainant, presumption under S.139 of the N.I. Act comes into play and the same holds the field until the accused discharges the burden on him at least by the inferior standard of preponderance of probabilities as applicable in a civil Crl.R.P.240/2005 14 case. It is also relevant quote Bir singh v. Mukesh kumar (2019 (1) KHC 774) wherein while dealing with Sec.139 of the N.I. Act it has been held that a blank cheque leaf voluntarily signed and handed over by the accused which is towards some payment would attract presumption under Sec.139 in the absence of any cogent evidence to show that cheque was not issued in discharge of a debt. It is also held, mere filling of cheque by the payee would not invalidate cheque and it does not amount to alteration.
23. In this case accused got examined himself as DW1 and produced Ext.D6 alleged to be an account book kept by him and set up a case of availment of Rs.5,000/- and Rs.10,000/- on two previous occasions in 1999 and that amount had been repaid and the two blank cheques alleged to have been entrusted with the complainant had not been returned, and he sent Ext.D7 notice alleging the above facts and as it has been found already in the previous paragraph, the defence so set up by the accused cannot be accepted as true and hence discarded. So the evidence adduced by the accused was not sufficient to rebut the presumption Crl.R.P.240/2005 15 that is available in favour of the complainant under Secs 139 and 118 of the N.I.Act .
24. More over the learned counsel for the respondent complainant would take my attention to the fact that before the presentation of the cheque, the accused gave request for 'stop payment' and Ext.P2 dishonour memo proved that cheque was dishonoured for the reason that the payment was stopped by the drawer. Ext.P6 the certified extract of the account of the accused kept in the bank would also prove that there was no sufficient fund in the account of the accused while presenting Ext.P1 cheque for collection. So fully knowing about the presentation of the cheque for encashment by the complainant, accused has issued direction to the bank for 'stop payment' also. In this context the learned counsel took may attention to Vasanthakumar T. v. Vijayakumar (2015 (4) KHC 4332). On going through the above decision it appears that the facts of that case is almost identical to the fact situation of the case in hand. In that case also, the cheque was dishonoured with remarks 'stop payment' and the case of the accused was that Crl.R.P.240/2005 16 cheque was given long back as a security for a loan. Though loan was repaid cheque was used to implicate the accused. In that context, it has been held that when cheque as well as signature had been accepted by accused, presumption under Sec.139 would operate. It is also held that when cheque was dishonoured due to stop payment, it is clear that accused had knowledge of cheque being presented to bank. In the absence of further evidence, such story of accused cannot be believed and conviction is said to be proper.
25. In this case also the cheque was dishonoured for the reason of stop payment by the accused and he admitted the signature in Ext.P1 cheque .Though accused set up a case that it has been issued while availing Rs.5000/- and 10000/, that had already been found against. So evidence of PW1 and Ext.P1 cheque discharges the initial burden cast upon the accused and presumption under Secs 139 and 118 of the N.I.Act would operate and the evidence adduced from the side of the accused, both oral and documentary, are not acceptable to take as rebuttal evidence. So it can be Crl.R.P.240/2005 17 concluded that Ext.P4 has been issued in discharge of a legally enforceable debt.
26. On an anxious consideration of the facts and circumstances of the case and the evidence adduced from both sides, I am of the considered view that the trial court and also the appellate court has appreciated the facts and circumstances in a correct perspective and I do not find any illegality or irregularity in the finding of guilt under Sec.138 of the N.I.Act.
27. Next is with regard to the sentence. The sentence passed by the V Additional Sessions Judge, Ernakulam is to undergo simple imprisonment for three months and to pay compensation for Rs.1,00,000/- in default to undergo simple imprisonment for two months. In view of the dictum laid down by the Apex Court in Kausalya Devi Massan v. Roopkishore Khore ( AIR 2011 Sc 2566) sentence passed is modified to fine of Rs.1,00,000/- in default to undergo simple imprisonment for three months. Fine amount, if realized, shall be paid to PW1 complainant as compensation under Sec.357(1)(b) Cr.P.C.
Crl.R.P.240/200518
28. In the result, the revision petition is allowed in part, confirming the conviction and modifying the sentence to that of fine of Rs.1,00,000/- in default to undergo simple imprisonment for three months. The bail bond executed by the revision petitioner stands cancelled and he is directed to pay the amount forthwith failing which the trial court shall take steps for execution of the sentence.
Sd/-
M.R.ANITHA Judge Mrcs/15.6.