Dr. T. R. Joel Lavanya v. S. Krishnan Madakkaruvila Veedu, Koonaayil, Paravur; State of Kerala; Addl. R3 Saraswathi Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.3069 OF 2006(C)** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.680/2005 OF III ADDITIONAL DISTRICT COURT, KOLLAM DATED 03.06.2006** **AGAINST THE JUDGMENT IN CC NO.147/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVOOR DATED 21.10.2005** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **DR.T.R.JOEL LAVANYA HOUSE, MULAVANA P.O., KOLLAM.** ## **BY ADV. SRI.M.T.SURESHKUMAR** ## **RESPONDENT/COMPLAINANT/STATE:** **1 S.KRISHNAN MADAKKARUVILA VEEDU, KOONAYIL, PARAVUR P.O., KOLLAM.** - **2 STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **ADDL.R3 SARASWATHI KRISHNAN W/O. LATE KRISHNAN, SARASS HOUSE, THKKEVILA P.O., BHARANIKAVU RESIDENT NAGAR, HOUSE NO. 96, MADANNADA, KOLLAM- 691018** **(ADDL. R3 IMPLEADED AS PER ORDER DATED 29/06/2020 IN CRIMINAL M.A. NO. 1/19 IN CRL. R.P. 3069/06)** **R1 BY ADV. SRI.B.SURESH KUMAR R2 BY SR. PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.3069 OF 2006(C)** 2 ## **ORDER** Dated this the 4[th] day of December, 2020 This revision is directed against judgment dated 03.06.2006 rendered by the III Additional Session Judge, Kollam, whereby the learned Sessions Judge convicted and sentenced the accused to undergo simple imprisonment for five months and also to pay a compensation of Rs.2,00,000/-, in default of payment of compensation to undergo further imprisonment for a period of two months more for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 2. It is the case of the 1[st] respondent/complainant (hereinafter referred to as 'complainant') that the revision petitioner/accused (hereinafter referred to as the 'accused') borrowed a sum of Rs.2,00,000/- on 15.08.2000 and issued Ext.P1 cheque for a legally enforceable debt. The complainant presented the said cheque for encashment, but the same was returned unpaid with the endorsement 'funds insufficient'. The complainant issued a legal notice to the accused through his **Crl.Rev.Pet.No.3069 OF 2006(C)** 3 Advocate calling upon the accused to pay the cheque amount. The said notice, sent by registered post duly served on the accused. The accused, however did not reply to the notice nor did he pay the cheque amount to the complainant. 3. The complainant filed a criminal complaint under Section 138 of the Act before the trial court. Upon consideration of the complaint, the learned Magistrate is _prima facie_ satisfied that a case is made out against the accused. Hence the learned Magistrate took cognizance of the offence under Section 138 of the Act and the case was taken on file as C.C.No.147 of 2001 of the Judicial First Class Magistrate Court, Paravur. 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, the complainant was examined as PW1 and marked Exts.P1 to P10. After the witnesses for the complainant had been examined and before the accused was called on for his defence, the accused was questioned under Section 313(1)(b) of Cr.P.C. for the purpose of enabling the accused personally to explain any **Crl.Rev.Pet.No.3069 OF 2006(C)** 4 circumstance appearing in the evidence against him. According to him, Ext.P1 is one among the four blank cheques signed by him and issued to PW1 as early as in 1999. He would say that the loan received was not Rs.2,00,000/- but only Rs.1,00,000/- on four occasions as instalments at different places for which four blank cheques were issued. He maintained that he had repaid an amount of Rs.1,00,000/- to PW1 and received back two of the cheques in the presence of two Sub Inspectors of Police, Kundara, who had intervened in the dispute between the parties. He would further say that there was failure to settle the interest portion of the liability pursuant to a compromise arrived at between the parties, the complainant misutilized Ext.P1 cheque and filed the present complaint. In support of his contention, the Sub Inspector of Police, Kundara was examined as DW1. 5. On appreciation of the evidence, the learned Magistrate held that execution of Ext.P1 cheque was admitted by the accused and that it was proved that the cheque was dishonoured on account of “insufficient funds”. The learned Magistrate disbelieved the version of the accused that the cheques were not **Crl.Rev.Pet.No.3069 OF 2006(C)** 5 issued by the accused for discharge of a debt or liability. The learned Magistrate also disbelieved the version of DW1 and accordingly the accused was convicted for the offence punishable under Section 138 of the N.I.Act. 6. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the Penal provision of Section 138 of the Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. Section 118 of the 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 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 **Crl.Rev.Pet.No.3069 OF 2006(C)** 6 being a holder in due course. That apart, Section 139 of the Act provides that 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 of the 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 Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will or have to be made that every negotiable instrument was made 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 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 the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no **Crl.Rev.Pet.No.3069 OF 2006(C)** 7 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. 7. In the case on hand, Ext.P1 cheque dated 15.08.2000 was presented for encashment in the months of November and it was dishonoured for want of 'insufficient funds' in the account of the accused on 17.11.2000. Demand notice was issued within 15 days as mandated under law. Ext.P4 is the copy of the demand notice issued. Ext.P6 postal akcowledgement card would prove that the accused received the notice. The complaint was filed in court on 21.12.2000 within time as required by law. On going through the entire evidence, issuance of cheque or signature therein is not disputed by the accused. His case is that it is one among the four blank cheques issued, which was subsequently altered in material particulars. It is his further case, that he had received an amount of Rs.1,00,000/- only as loan which was in the year 1999 on four occasions as instalments at different places **Crl.Rev.Pet.No.3069 OF 2006(C)** 8 **.** He and for each such instalments, blank cheques were issued would say that when dispute arose between the parties, he filed a complaint before the Sub Inspector of Police, Kundara, who intervened the matter and settled the dispute for an amount of Rs.1,00,000/- According to him, the said amount was paid by him on two occasions. He would maintain that there was only balance amount of Rs.30,000/- as interest. He would maintain that claiming the interest, complainant filed a complaint under Section 138 of the N.I. Act utilising one of the blank cheques entrusted to the complainant. 8. It is well settled law that a revision against concurrent findings of conviction and sentence, the High Court does not, in the absence of perversity upset factual findings arrived at by the trial court. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case where the trial court and appellate court have come to a probable conclusion. On going through the concurrent findings, this Court is of the view that the both the trial court and appellate court concurrently construed the presumptions under Section 139 of the Act in accordance with law. **Crl.Rev.Pet.No.3069 OF 2006(C)** 9 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 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 accused has no case that unfilled cheque had been lost irrecoverably or stolen. Although DW1 was examined before the trial court, he had no direct knowledge regarding the transaction between the parties. 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 Act read with Section 118 of the 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_ **Crl.Rev.Pet.No.3069 OF 2006(C)** 10 _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 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.”_ 9. In view of the above, the burden was on the accused to prove that the blank cheques were issued to the complainant in repayment of the loan transaction. The burden has not been discharged. It has come out in evidence that the prosecution was initiated against the accused by the complainant in accordance with the scheme of the N.I.Act. 10. Hence, the complainant has succeeded in proving that the accused borrowed an amount of Rs.2,00,000/- from the complainant and issued Ext.P1 cheque for a legally enforceable debt. 11. Judged by the above standards, this Court is of the view **Crl.Rev.Pet.No.3069 OF 2006(C)** 11 that the trial court rightly convicted the accused for the offence punishable under Section 138 of the N.I.Act. Coming to the sentence, the learned counsel for the revision petitioner submitted that mandatory imprisonment is not required for the offence punishable under Section 138 of the N.I.Act. As per Section 138 of the N.I.Act, the offence is punishable with imprisonment or with fine or with both. Considering the above circumstances, this is a fit case for altering the sentence to one of fine. Accordingly, the sentence is altered to one of fine for an amount of Rs.2,00,000/-, in default of payment of fine to undergo simple imprisonment for a period of 5 months. If the fine amount is deposited by the accused before the trial court, the same shall be released to the complainant as compensation in accordance with law. At this juncture, the learned counsel for the revision petitioner submits that the revision petitioner may be given nine months time to pay or deposit the compensation amount before the trial court. In view of the Covid 19 pandemic situation prevailing in the country, it is just and proper to grant nine months time to pay or deposit the compensation amount before the trial court. 12 ## **Crl.Rev.Pet.No.3069 OF 2006(C)** The revision is allowed in part and is disposed of accordingly. Sd/- **N.ANIL KUMAR, JUDGE** dlk/04.12.2020