High Court of KeralaSingle Judge2015-09-29Revision petition disposed of with modified sen...

Anirudhan v. Manmadhan and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.2220 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2015-09-29
Court Decision / Holding: Conviction under Section 138 NI Act upheld; sentence modified to imprisonment till rising of the Court and payment of Rs 2,50,000 as compensation under Section 357(3) Cr.P.C.; in default of payment, simple imprisonment for three months. The accused is to surrender in the Judicial First Class (Munsiff) Magistrate-II, Haripad to undergo the modified sentence; non-compliance may lead to a non-bailable warrant. Crl.R.P. disposed of accordingly.
Final Disposition: Revision petition disposed of with modified sentence; conviction upheld.

Parties to the Case

Appellants / Petitioners

ANIRUDHAN S/O.KRISHNA PANICKER, KRISHNEN THOPPIL, KATTIL MARKET P.O. THAMALLACKAL SOUTH MURI, KUMARAPURAM VILLAGE

Respondents

MANMADHAN
STATE OF KERALA

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Rajeevkumar
• Sri B. Renjithkumar

Counsels for Respondents

• Public Prosecutor Sri. N. Suresh

Case Synopsis & Summary

Anirudhan v. Manmadhan and State of Kerala is a criminal revision petition challenging a conviction under Section 138 of the Negotiable Instruments Act. The complainant alleged that Anirudhan borrowed Rs 2,50,000 and issued a cheque, which upon presentation was dishonoured for funds insufficiency. Following due notice, a complaint was filed; PW1 and PW2 testified, and Exts. P1 to P9 were marked. The trial court convicted the petitioner under Section 138 NI Act and sentenced him to three months’ simple imprisonment and a fine of Rs 5,000, with default imprisonment. The appellate court affirmed the conviction. In the revision petition, counsel for the petitioner conceded lack of rebuttal evidence and urged that the sentence was too harsh and should be modified. The Public Prosecutor did not object to modifying the sentence. The court noted the statutory presumption under Section 139 NI Act in favor of the holder when a cheque is dishonoured under Section 138 and found that the revision petitioner failed to rebut this presumption, relying on Beena v. Muniappan for the presumption principle. Ultimately, the court confirmed the conviction and altered the sentence: imprisonment till rising of the Court under Section 138 NI Act, payment of Rs 2,50,000 as compensation under Sec. 357(3) Cr.P.C., and a default provision of three months’ imprisonment. The petitioner is directed to surrender for the modified sentence with further warrants if non-compliant, and the revision petition is disposed of accordingly.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 139 of the Negotiable Instruments ActSection 357(3) Cr.P.C.

Legal Doctrines & Maxims

Presumption in favour of the holder under Section 139 NI Act
Beena v. Muniappan (AIR 2001 SC 2995) - presumption principle under Section 139 NI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends there is no rebuttal evidence in the case and the sentence imposed by the trial court is unduly harsh. The evidence, including Ext P1 cheque and bank records, points to the cheque being issued in discharge of a debt; however, there is no defence evidence to rebut the prosecution. The applicant urges that conviction may stand but the sentence should be modified to reflect the principles of proportionality and fairness, with imprisonment till rising of the Court and compensation under Sec. 357(3) Cr.P.C., while keeping the conviction intact.

Contentions of Respondents

The respondents support the view that the cheque was issued to discharge a debt and that the presumption under Section 139 NI Act applies in favour of the holder upon dishonour under Section 138. They submit that the respondent State has no objection to modifying the sentence, provided the conviction stands and the statutory presumption remains unchallenged. The case record and statutory presumption justify upholding the conviction and a calibrated modification of sentence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Beena v. Muniappan	AIR 2001 SC 2995	Positive	Beena v. Muniappan is cited for explaining the presumption under Section 139 NI Act in favor of the holder when a cheque is dishonoured under Section 138 and that the accused must rebut this presumption.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2015/7TH ASWINA, 1937** **Crl.Rev.Pet.No. 2220 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 182/2001 of ADDL. SESSIONS COURT- II, MAVELIKKARA DATED 02-03-2005 AGAINST THE JUDGMENT IN CC 116/2000 of JUDICIAL FIRST CLASS (MUNSIFF) MAGISTRATE-II, HARIPAD DATED 17-05-2001** ## **REVISION PETITIONER(S)/ACCUSED/APPELLANT:** **-------------------------------------------** **ANIRUDHAN,** **S/O.KRISHNA PANICKER, KRISHNEN THOPPIL, KATTIL MARKET P.O. THAMALLACKAL SOUTH MURI, KUMARAPURAM VILLAGE.** **BY ADVS.SRI.G.RAJEEVKUMAR** **SRI.B.RENJITHKUMAR** ## **RESPONDENT(S)/COMPLAINANT/RESPONDENTS & STATE:** **-------------------------------------------------** ## **1. MANMADHAN,** **AGED 45 YEARS, MUKESH BHAVAN, THAMALLACKAL THEKKU THAMALLACKAL P.O., HARIPPAD.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-09-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.2220 of 2005 ---------------------------------------------Dated this the 29[th] day of September, 2015 ## **ORDER** The revision petitioner, who was the appellant in Crl.Appeal No.182/2001 of Additional Sessions Judge-II, Mavelikara, challenges the concurrent finding of conviction u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). He was the accused in C.C.No.116/2000 of Judicial First Class Magistrate-II, Haripad and convicted and sentenced to simple imprisonment for three months and to pay fine of 5,000/-, in default of₹ payment of fine, simple imprisonment for one month. Against that, he preferred the above appeal, in which the conviction was confirmed. Being aggrieved by that, he preferred this Crl.R.P. No.2220/2005 2 revision petition. 2. The complainant's case in the trial Court was that the accused borrowed a sum of 2,50,000/- and in₹ discharge of that debt, he issued Ext.P1 cheque. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Thereafter, the complainant demanded the amount by giving a notice in writing to the revision petitioner. Even after receipt of notice, there was no repayment by the revision petitioner. In the circumstances, he filed the complaint in the trial Court. During trial, PW1 and PW2 were examined and Exts.P1 to P9 were marked as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The trial Court, after analysing the evidence, convicted the revision petitioner. 3 Crl.R.P. No.2220/2005 3. The learned counsel for the revision petitioner admitted that there is no rebuttal evidence in this case. Moreover, the sentence imposed by the trial Court is too harsh and to be modified. The learned Public Prosecutor has no objection in modifying the above sentence. 4. According to PW1, the revision petitioner borrowed a sum of 2,50,000- and in discharge of that₹ debt, he issued Ext.P1 cheque. When Ext.P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo. Ext.P3 is the intimation memo. The complainant demanded the money by issuing a lawyer notice. Ext.P4 is the copy of the lawyer notice. Ext.P5 is the postal receipt. Ext.P6 is the acknowledgment card. PW2, the Bank Manager deposed that when Ext.P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P7 is Crl.R.P. No.2220/2005 4 the copy of extract of statement. Ext.P8 is the copy of cheque return register. Ext.P9 is the copy of specimen signature. Analysing the evidence in Exts.P1 to P9, the trial Court was of the view that the cheque was dishonoured for the reason stated u/s.138 of the N.I. Act. 5. When cheque is dishonoured for the reason stated u/s.138 of the N.I. Act, a presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the cheque. Section 139 of the N.I. Act reads as follows: “139. Presumption in favour of the 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”. The revision petitioner admitted his signature, which is corelating the specimen signature mentioned in Ext.P9. No rebuttal evidence is available with regard to that aspect. In the circumstances, the trial Court and the appellate Crl.R.P. No.2220/2005 5 Curt were of the view that Ext.P1 cheque was issued in discharge of a debt, which was dishonoured for the reason of funds insufficient. It is the primary responsibility of the revision petitioner to rebut the evidence, but no such evidence is available in this case. The principle drawing presumption has been explained by the Apex Court in **Beena** v. **Muniappan** (AIR 2001 SC 2995). Therefore, the conviction passed by the trial Court is only to be confirmed. 6. The quantity of punishment must be depend up on the facts and circumstances of each case and the conduct of the accused and victim. The sentence, therefore, should be appropriate neither too harsh nor too lenient. In he peculiar circumstances of the case, the revision petitioner is sentenced as follows: a) He is sentenced to imprisonment till rising of the Crl.R.P. No.2220/2005 6 Court u/s.138 of the N.I. Act and to pay compensation of ₹2,50,000/-, u/s.357(3) Cr.P.C. in default of payment of compensation, simple imprisonment for three months. b) If the compensation amount is realised, it shall be disbursed to the 1[st] respondent. c) The revision petitioner is directed to surrender in the Judicial First Class (Munsiff) Magistrate-II, Haripad forthwith to undergo the modified sentence. d) If he fails to do so, the learned Magistrate shall issue non-bailable warrant against the revision petitioner. Crl.R.P. is disposed of accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.2220/2005 7 Crl.R.P. No.2220/2005 8