Assainar v. Akbar Tours & Travels (P) Ltd. and State of Kerala

## **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.4014 OF 2007** **AGAINST THE JUDGMENT IN CRA 19/2007 DATED 31-07-2007 OF SESSIONS COURT, KOZHIKODE** **CC 95/06 DATED 13-12-2006 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **ASSAINAR, AGED 41 YEARS, S/O.ABDULLA, PROPRIETOR, HEERA TOURS & TRAVELS, KALLATRA COMPLEX, KOTTACHERY, KANJANGAD.** **BY ADV.SRI.KODOTH SREEDHARAN** ## **RESPONDENTS/RESPONDENTS/RESPONDENT & COMPLAINANT:** **1 AKBAR TOURS & TRAVELS (P) LTD., BEACH ROAD, CALICUT, REP. BY ITS ACCOUNTANT GOVINDA PRAKASH, AGE-34 YEARS, S/O.RADHAKRISHNAN.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **R1 BY ADV. SRI.M.MUHAMMED SHAFI R1 BY ADV. SRI.P.SANJAY R2 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON 23-11-2020 PASSED THE FOLLOWING:** Crl.R.P.No.4014 of 2007 ..2.. ## **ORDER** Dated this the 23[rd] day of November, 2020 This criminal revision petition is directed against the judgment dated 31.07.2007 rendered by the Sessions Court, Kozhikode, in Crl.Appeal No.19 of 2007, whereby the learned Sessions Judge allowed the appeal in part, confirming the conviction under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act') and modifying the sentence rendered by the trial court to undergo imprisonment till the rising of the court and also to pay a compensation of Rs.2,05,000/and in default of payment of fine to undergo simple imprisonment for a period of three months more under Section 138 of the N.I.Act. 2. The revision petitioner was the accused in C.C.No.95/2006 on the file of the Special Judicial First Class Magistrate Court, (Marad Cases), Kozhikode and the Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** appellant in Crl.Appeal No.19/2007 on the file of the Sessions Court, Kozhikode. The 1[st] respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the N.I.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 N.I.Act and the case was taken on file as C.C.No.95/2006. 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 purchased air tickets on credit basis from the complainant and in discharge of the aforesaid liability, the accused issued a cheque dated 02.03.2005 for a sum of Rs.2,00,000/- drawn on the account maintained by the Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** accused with the ICICI Bank, Kasaragod Branch. The complainant presented the cheque for encashment through the Syndicate Bank, Mavoor Road Branch, but the cheque was dishonoured for want of sufficient funds. Statutory notice was issued on 16.07.2005 to the accused calling upon him to pay the amount. The accused received the legal notice on 19.07.2005. However, he had neither sent a reply nor paid the amount covered under the cheque. 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 P7 on prosecution side. After PW1 had been examined, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** evidence against him. He denied all the circumstances. He filed a statement before the court admitting the issuance of cheque for Rs.2,00,000/- in favour of the complainant. However, he contended that he had paid Rs.1.5 lakh in cash to the complainant in order to avoid delay in encashing the cheque. He further stated that the aforesaid amount of Rs.1.5 lakh was received by the complainant in partial discharge of the amount covered under the cheque. According to him, the balance amount is only a sum of Rs.50,000/- and he is ready and willing to pay the said amount. He also contended that the complainant had filed the complaint suppressing material facts. In support of the defence, DW1 was examined and marked 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 the reason 'want of sufficient funds'. The Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** complainant issued 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 cheque 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.Kodoth Sreedharan, the learned counsel for the revision petitioner, Sri.P.Sanjay, the learned counsel for the 1[st] respondent and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 2[nd] respondent-State. 7. In order to determine the question whether the offence punishable under Section 138 of the N.I.Act is made out against the accused, it is necessary to examine Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** the Penal provision of Section 138 of the N.I.Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the N.I.Act. Section 118 of the N.I.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 N.I.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 N.I.Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** the cheque of the nature referred to in Section 138 of the N.I.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 N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.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 N.I.Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of Crl.R.P.No.4014 of 2007 **==> picture [22 x 8] intentionally omitted <==** 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, Accountant of the complainant company who was authorized by the Board of Directors was examined as PW1. Ext.P1 is the resolution passed by the Board of Directors of the complainant company. The case of the complainant is that the accused had purchased air tickets from the company and in discharge of the said liability, the accused had issued Ext.P2 cheque for an amount of Rs.2,00,000/-. When the cheque was presented for Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** encashment, it was returned unpaid for want of sufficient fund. Ext.P5 statutory notice was issued calling upon the accused to pay the amount covered under Ext.P2. Ext.P6 is the acknowledgment card. The amount covered under Ext.P2 cheque remained unpaid. 9. Execution of Ext.P2 cheque is admitted by the accused. Ext.P2 cheque was issued by the accused on 02.03.2005 for an amount of Rs.2,00,000/-. However, the accused pleaded discharge of the amount. He contended that he had paid Rs.50,000/- on 01.03.2005 and Rs.1,00,000/- on 03.03.2005 in partial discharge of the amount covered under Ext.P2. He had expressed his willingness to pay the balance amount in black and white. No doubt, the burden is on the accused to prove that an amount of Rs.50,000/- was paid on 01.03.2005 and an amount of Rs.1,00,000/- was paid on 03.03.2005 in discharge of debt covered under Ext.P2. Ext.P7 computer Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** printout of the ledger extract has been produced to prove that there existed a running transaction between the complainant and the accused in the ordinary course of business. When cross-examined, PW1 admitted that an amount of Rs.50,000/- was received by him. However, he stated that he could not remember as to whether he received an amount of Rs.1,00,000/- subsequently. It has come out in evidence that the complainant is a private limited company engaged in the business of selling air tickets of various airlines having IATA recognition. According to PW1, the accused was one of the customers of the company and used to purchase air tickets on credit basis. The accused has no case that he purchased air tickets from the complainant company for an amount of Rs.2,00,000/- and paid an amount of Rs.50,000/- initially and thereafter Rs.1,00,000/- in partial discharge of the amount. The trial court had not accepted Ext.P7 for Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** various reasons including belated production of the same. In all these circumstances, the trial court refused to accept Ext.P7. In case Ext.P7 is accepted in evidence, the entire case of the accused is unsustainable. It has come out from Ext.P7 that an amount of Rs.6,49,897/- was due to the complainant as on 01.03.2005 in the running account between the accused and the complainant. Though Ext.P7 was not accepted by the trial court, the trial court entered a finding that no evidence was adduced by the accused to show that an amount of Rs.1,50,000/was paid in discharge of the amount covered under Ext.P2. DW1 admitted that the transaction between the complainant and the accused is that air tickets will be issued on credit basis and the amount will be paid later. The transactions between the parties would show that the accused was maintaining a running account with the complainant. When Ext.P7 was produced, the learned Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** counsel for the accused objected to the marking of the same on the ground that the same is not genuine. The trail court rejected the same mainly on the ground that the copy of the same was not given to the accused in every month. If Ext.P7 is accepted, the entire case of the accused is unsustainable. Even otherwise, there is credible evidence to prove that a running account was maintained between the complainant and the accused in the ordinary course of business. 10. The learned counsel for the revision petitioner contended that portion of the amount covered under Ext.P2 was repaid and hence prosecution for the entire amount is unsustainable in view of the decision in **Joseph Sartho v. G.Gopinathan & Another [2008 (4) KHC 463]** . In the said case portion of the amount covered by the cheque was repaid and if the amount covered by the cheque was admittedly larger than the amount of debt or Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** liability, the prosecution for the whole amount is unsustainable. The principle formulated in the said decision is not applicable in this case. There is no reliable evidence to prove that an amount of Rs.1,50,000/- was paid by the accused towards the amount covered under Ext.P2 cheque. The preponderance of probability is in favour of the fact that the accused had been maintaining a running account with the complainant to purchase air tickets from the complainant on credit basis. This is clear from the evidence on record. 11. The learned counsel for the revision petitioner further contended that necessary materials are brought on record consistent with the innocence of the accused which may reasonably true, even though it is not positively proved to be true, the accused is entitled to acquittal. In this connection, the learned counsel for the revision petitioner relied on the decision in **Basalingappa v.** Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** **Mudibasappa [2019 (2) KHC 451]** of the Apex Court and contended that the accused had produced sufficient materials before trial court consistent with his innocence and the materials produced by him were reasonably proved though it was not positively proved. Going by the evidence, it is clear that the accused admitted execution of Ext.P2 in this case. His case is that he paid an amount of Rs.1,50,000/- out of Rs.2,00,000/- covered under Ext.P2. On being questioned under Section 313(1)(b) of the Cr.P.C. he filed a statement before the court stating that he was ready and willing to pay Rs.50,000/- to the complainant. He did not raise such a contention immediately on receipt of the statutory notice. He did not also take any steps to rebut the presumption by producing some materials to prove the earlier transactions between the parties. In fact he failed to rebut the presumption under Sections 118 and 139 of the N.I. Act. The rebuttal Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** evidence adduced by him is not reasonably proved. It appears that all contentions are raised to avoid payment to the complainant. 12. 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 N.I.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 Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** accused 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. In **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197],** the Supreme Court held that in view of Section 139 of the N.I.Act read with Section 118 of the N.I.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 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_ Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** _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.”_ 13. 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 N.I.Act. The burden is not discharged rightly. The complaint was filed before the trial court in 2006. The complainant has been prosecuting this case for the last 14 years. 14. Coming to the question of sentence, Ext.P2 cheque was executed as early as on 02.03.2005. The accused has been conducting this criminal case for the Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** last 14 years. 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. 15. In the result, the criminal revision petition is partly allowed. The conviction against the accused under Section 138 of the N.I.Act is confirmed. The sentence is modified as follows:- 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 three 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 Crl.R.P.No.4014 of 2007 **==> picture [28 x 8] intentionally omitted <==** 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** skj