D. Viswanathan v. The State of Kerala and K. Lekshmanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938** **CRL.REV.PET.NO. 78 OF 2006 ( ) -------------------------------** **AGAINST THE JUDGMENT IN CRA NO.158/2001 OF THE 3[RD] ADDITIONAL SESSIONS JUDGE, KOLLAM DATED 23-11-2005** **AGAINST THE JUDGMENT IN CC NO.479/1997 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR DATED 24-07-2001** **-------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **-----------------------------------------** **D.VISWANATHAN, VILAYIL VEEDU, KARAMCODE, CHATHANNOOR, MEENADU VILLAGE, KOLLAM.** **BY ADVS.SRI.B.KRISHNA MANI SRI.RAHUL VENUGOPAL** **RESPONDENT(S)/STATE/COMPLAINANT.:** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. K.LEKSHMANAN, RAJESH BHAVAN, THAZHAM, CHATHANNOOR, KOLLAM.** **BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.78 of 2006 ---------------------------------Dated this the 24[th] day of October, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.158 of 2001 of the 3[rd] Additional Sessions Judge, Kollam. He was the accused in C.C. No.479 of 1997 before the Judicial First Class Magistrate, Paravoor which was filed under Sec.138 of the NI Act. The learned Magistrate convicted the accused under Sec.138 NI Act and sentenced him to simple imprisonment for six months and compensation of Rs.30,000/- under Sec.357(3) Cr.P.C. Against that, the accused preferred the above criminal appeal, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, accused preferred this revision petition. 2. The complainants case in the trial court is that the accused borrowed a sum of Rs.30,000/- from him and in discharge of that debt, he issued Ext.P1 cheque dated 28.06.1997 drawn on District Co-operative Bank, Crl. Rev.Pet. No.78 of 2006 2 Kollam. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing but there was no repayment. Hence he preferred the above complaint. During trial the complainant was examined as PW1 and his documents were marked as Exts.P1 to P8. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2. ## 3. Sec.138 of the NI Act reads as follows: Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person an an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- ## (a) the cheque has been presented to the bank Crl. Rev.Pet. No.78 of 2006 3 within a period f six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 4. The complainant was examined as PW1. His evidence shows that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo. He demanded the amount by giving a notice in writing. Ext.P3 is the copy of the lawyer notice, Ext.P4 is the postal receipt, Ext.P5 is the postal acknowledgment, Ext.P6 is another memo issued from the District Co-operative Bank, Kollam, Ext.P7 is the cheque return register and Ext.P8 is the ledger extract. Analysing the evidence of PW1 it is true that Ext.P1 was presented for encashment and it was dishonoured for the reason of funds insufficient. When a cheque is Crl. Rev.Pet. No.78 of 2006 4 dishonoured for the reasons stated under under Sec.138 of the NI Act a presumption under Sec.139 NI Act can be drawn in favour of the holder of the cheque. 5. According to Sec.139 of the NI Act 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. Apex Court in **Beena v. Muniappan (AIR 2001 SC 2995)** and **M.S. Narayana Menon Alias Mani v. State of Kerala and Another [2006 (6) SCC 39** ] held that the presumption is rebuttable and in order to rebut the presumption the accused has to adduce cogent and convincing evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. In this case, no evidence has been adduced by the accused in the trial court to rebut the presumption. In the circumstance, the trial court rightly convicted the accused. I find no illegality in the above finding. Crl. Rev.Pet. No.78 of 2006 5 6. Revision petitioner disputed the transaction and contended that he had already repaid the entire amount. To substantiate that contention, he examined DW1 and DW2. During cross examination of DW1, he admitted that the transaction between the revision petitioner and 1[st] respondent was during the year 1994 and in his evidence, there was financial transaction between the revision petitioner and 1[st] respondent’s wife. The trial court discarded that evidence and drawn a presumption under Sec.139 NI Act. If there is any legal presumption that a cheque was issued in discharge of a debt or liability such presumption can be rebutted by the accused by adducing cogent and convincing evidence. Therefore, the responsibility is upon the revision petitioner to adduce evidence and rebut the presumption available under Sec.139 of the NI Act. Even though DW1, DW2 were examined that itself is not sufficient to rebut the presumption. Apex court in **Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145]** held as follows: “ There is a legal presumption that the cheque was issued for discharging an antecedent liability. ## Crl. Rev.Pet. No.78 of 2006 6 The aforesaid presumption is in favour of the holder of the cheque. It is not mentioned in the section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should adduce evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office-bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office-bearers-accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but the office-bearers of the company alone are made the accused such office-bearers-accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability.” 7. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been Crl. Rev.Pet. No.78 of 2006 7 done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. In this case, the accused failed to adduce sufficient evidence to rebut the presumption under Sec.139 NI Act and the complainant proved his case as stated under Sec.138 NI Act. The trial court rightly appreciated the evidence and convicted the accused which was upheld by the appellate court. I find no illegality or irregularity in the order of the courts below. There is no merit in this revision petition and is dismissed accordingly. ## Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/27/10/2016 P.A. To Judge