Kerala High Court
B.Madhu vs Anil Kumar & Another on 19 October, 2023
Author: C. S. Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
CRL.REV.PET NO. 1538 OF 2011
AGAINST THE ORDER/JUDGMENT CRA 684/2008 OF II ADDITIONAL DISTRICT
COURT,THIRUVANANTHAPURAM
ST 161/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
I,THIRUVANANTHAPURAM
REVISION PETITIONER/S:
B.MADHU, S/O.BHANU NADAR, MADHU BHAVAN
VILAVOORKAL,MALAYAM PO,THIRUVANANTHAPURAM.
BY ADV SRI.R.T.PRADEEP
RESPONDENT/S:
1 ANIL KUMAR , S/O.SUKUMARAN NAIR
TC 21/669,NALINAM,PALLITHANAM LANE,KARAMANA,,
THIRUVANANTHAPURAM. 695002
2 STATE OF KERALA REP.BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADVS.
SMT.K.R.RIJA -R1
SRI.SUMAN CHAKRAVARTHY-R1
OTHER PRESENT:
SMT.NIMA JACOB, PUBLIC PROSECUTOR -R2
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P. No.1538 of 2011
C. S. DIAS, J.
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Crl.R.P. No.1538 of 2011
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Dated this the 19th day of October, 2023
ORDER
The revision petitioner calls in question the correctness and legality of the judgments in Crl.A No.684/2008 passed by the Court of the Additional Sessions Judge-II, Thiruvananthapuram (Appellate Court) and in S.T No.161/2006 passed by the Court of the Judicial Magistrate of First Class-I, Thiruvananthapuram (Trial Court), holding the revision petitioner guilty for the offence under Section 138 of the Negotiable Instruments Act (for brevity, "N.I.Act") and convicting and sentencing him for the said offence. The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. For the sake of 3 Crl.R.P. No.1538 of 2011 convenience, the parties are referred to as per their status in the complaint.
Relevant facts
2. The complaint was filed alleging that the accused had in discharge of a legally enforceable debt issued Ext P1 cheque dated 24.11.2007 in favour of the complainant for an amount of Rs.3,00,000/-. The cheque, on presentation to the bank for collection, got dishonoured by Ext.P2 memorandum due to 'insufficient funds' in the bank account of the accused. Despite issuing Ext P3 statutory lawyer notice to the accused, he failed to pay the demanded amount. Instead, the accused issued Ext P6 reply notice. Hence, the accused committed the above offence.
3. The learned Magistrate took cognizance of the offence. The accused denied the substance of accusations made against him. In the Trial, the complainant examined 4 Crl.R.P. No.1538 of 2011 himself as PW1 and Exts.P1 to P6 were marked in evidence. The accused denied the incriminating circumstances appearing in the evidence against him in the questioning under Section 313 of the Code of Criminal Procedure ( in short, Code). The accused examined DWs 1 to 4, including himself as DW4, and marked Exts D1 to D3 in evidence.
Trial Court Judgment
4. The learned Magistrate, after analysing the materials on record, found the accused guilty for the offence under Sec.138 of the N.I Act and convicted and sentenced him to undergo simple imprisonment for a period of six months and pay a fine of Rs.3,00,000/- and in default to undergo simple imprisonment for a further period of three months. If the fine amount was realised, the same to be paid as compensation to the complainant under Sec.357(1) (b) of the Code. 5 Crl.R.P. No.1538 of 2011
5. Aggrieved by the said judgment, the accused preferred Crl.A No.684/2008 before the Appellate Court. Appellate Court judgment
6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, confirmed the conviction but modified the sentence by reducing the substantive sentence to, till the rising of the Court and directed the accused to pay a fine of Rs.3,05,000/- and in default to undergo simple imprisonment for a period of six months.
7. It is assailing the concurrent judgments passed by the court below, the present revision petition is filed.
8. Heard;Sri.R.T Pradeep, the learned counsel appearing for the revision petitioner; Sri.Suman Chakravarthy, the learned counsel appearing for the first respondent and 6 Crl.R.P. No.1538 of 2011 Smt.Nima Jacob, the learned Public Prosecutor appearing for the second respondent/State.
9. Is there any illegality, impropriety or irregularity in the judgments passed by the courts below?
10. The revisional jurisdiction of this Court is to be sparingly exercised in the cases of exceptional rarity, when there is patent error, manifest illegality and total misreading of the records.
11. The case of the complainant is that the accused had borrowed a sum of Rs.3,00,000/- from him and had issued Ext P1 cheque in discharge of the said liability. The cheque, on presentation to the bank for payment, got returned due to 'insufficiency of funds' in the account of the accused. Despite making a demand for repayment of the money, the accused failed to pay the amount. Hence, the accused committed the above offence.
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12. The accused sent Ext P6 reply notice and also got himself and three other witnesses examined as DWs 1 to 4 and marked Exts D1 to D4 at the defence evidence stage.
13. The accused's defence is that he had no business transaction with the complainant. He had given signed blank cheques to his brother (DW2) for the purpose of his vegetable business. DW2 had borrowed a sum of Rs.50,000/- from one Anilkumar and had repaid the amount to the said person. However, Anilkumar demanded for more money. Thereafter, Anilkumar with some goondas went to the shop of DW2 and assaulted him and took away all the signed blank cheques that were kept in the shop. One of the said cheques belonging to the accused was handed over to the complainant, and the present complaint was filed. The accused also examined DW1, a staff of DW2 and DW3 - the Advocate who issued Ext D1 notice to Anilkumar threatening to initiate proceedings 8 Crl.R.P. No.1538 of 2011 against him. Hence, according to the accused, Ext P1 cheque was not issued towards a legally enforceable debt.
14. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Sections 118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions:
"118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made;-
(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted,indorsed, negotiated or transferred, was accepted,indorsed, negotiated or transferred for consideration;
139. Presumption in favour of holder. --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, for the discharge, in whole or in part, of any debt or other liability".
15. A three-Judge Bench of the Hon'ble Supreme Court in Rangappa v. Sri.Mohan [2010 KHC 4325], while dealing with Section 139 of the N.I. Act has conceptualised the doctrine of 'reverse onus', by holding thus:
" 18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed 9 Crl.R.P. No.1538 of 2011 include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own."
16. Recently, a three-Judge Bench of the Hon'ble Supreme Court in Kalamani Tex and Anr v. P. Balasubramanian [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. It is apposite to 10 Crl.R.P. No.1538 of 2011 extract the relevant paragraphs, which declares the law on the point in the following terms:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature
(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243)."
17. In addition to above declaration of law in Bir Singh and Mukesh Kumar [ 2019 (1) KHC 774 SC] the Hon'ble Supreme Court has held that even if a signed black cheque is voluntarily presented to a payee towards some payment and the payee fills up the amount and other particulars, the same would not obliterate the presumption under Sec.139 of the N.I Act, unless there is cogent evidence to discharge the said burden.
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18. In the case at hand, admittedly, the accused was a Headconstable in the Kerala Police service. He has alleged that for the business purpose of his brother (DW2), he gave signed blank cheques to DW2, who had business transactions with Anilkumar. The said Anilkumar allegedly trespassed into DW2's shop and stole the cheques. Instead of complaining to the Police, DW2 issued Ext D1 lawyer notice to Anilkumar threatening to initiate proceedings. But no action is seen taken. It is making use of one of the stolen cheques, the complainant launched the prosecution. Therefore, there is no legally enforceable debt payable by the revision petitioner/accused to the first respondent/complainant.
19. The courts below, after appreciating the materials on record, have concurrently concluded that the defence set up by the accused is highly improbable, especially taking into account the fact that he was a Police officer. If at all his cheque was stolen, he would have certainly initiated criminal 12 Crl.R.P. No.1538 of 2011 proceedings. Instead, he remained silent and made his brother(DW2) to issue a lawyer notice to the said Anilkumar. I fully concur with the above finding with the courts below.
20. After bestowing my anxious consideration of the materials placed on record and the findings rendered by the courts below, I do not find any error, illegality or impropriety in the conclusions arrived at by the courts below to take a contrary view. Thus, I confirm the conviction and sentence passed by the courts below.
In the result,
(i) The revision petition is dismissed.
(ii) The conviction and sentence passed by the
courts below are confirmed.
(iii) The revision petitioner is directed to appear before the Trial Court on or before 18.12.2023 to undergo substantive sentence and pay the fine amount, failing which to undergo the default sentence.
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(iv) Needless to mention, if the revision petitioner has already deposited any amount before the court below, only the balance amount need be deposited.
(v) In failure of the revision petitioner to appear before the Trial Court to undergo the sentence and pay the compensation, the Trial Court shall execute this order in accordance with law.
(vi) The execution of the sentence shall stand deferred till 18.12.2023.
(vii) If the fine amount is realised, the same shall be released to the 1st respondent/complainant as compensation under Section 357(1) (b) of the Code and in accordance with law.
(viii). The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance.
sd/-
sks/19.10.23 C.S.DIAS, JUDGE