Hashim M. v. Gopalakrishnan Pillai (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938** **CRL.REV.PET.NO. 459 OF 2015 ()** **-------------------------------** **AGAINST THE JUDGMENT IN CRA NO.216/2012 OF ADDITIONAL SESSIONS JUDGE-V, KOLLAM DATED 25-10-2014** **AGAINST THE JUDGMENT IN CC NO.775/2003 OF MUNSIFF MAGISTRATE, PARAVUR DATED 30.06.2007** **--------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **----------------------------------------** **HASHIM M., S/O. MUHAMMED KASIM, S.M. MANZIL, CHITTATTUMUKKU, KANKYAPURAM P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.SUBHASH CYRIAC SRI.BOBBYMATHEW KOOTHATTUKULAM SMT.SHEEBA JOSEPH** ## **RESPONDENT(S)/RESPONDENT/ACCUSED:** **---------------------------------** **1. GOPALAKRISHNA PILLAI (EXPIRED) S/O. PADMANABHA PILLAI, CHITHIRA, KONGAL, PARAVUR P.O., KOLLAM 691301.** **2. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, REAM MOHAN PALACE COMPOUND, ERNAKULAM 682031.** **3. SYMALA, W/O. GOPALAKRISHANAPILLAI CHITHIRA, KONGAL, PARAVUR P.O., KOLLAM 691301.** **4. REKHA, D/O. GOPALAKRISHANPILLAI, CHITHIRA, KONGAL, PARAVUR P.O., KOLLAM 691301.** **5. RAKHI, D/O.GOPALAKRISHANAPILLAI, CHITHIRA, KONGAL, PARAVUR P.O., KOLLAM-691301.** **6. RAJESH, S/O. GOPALAKRISHAN PILLAI, CHITHIRA, KONGAL, PARAVUR P.O., KOLLAM 691301.** **R2 BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN R3-R6 BY ADVS. SRI.N.KRISHNA PRASAD** **SRI.J.VENUGOPAL PILLAI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------Crl. Rev.Pet. No.459 of 2015 ---------------------------------Dated this the 23[rd] day of November, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.216 of 2012 of the Additional Sessions Judge-V, Kollam. He was the accused in C.C. No.775 of 2003 of the Munsiff Magistrate, Paravur which was filed under Sec.138 of the Negotiable Instruments Act (for short, NI Act). The learned Magistrate convicted the accused under Sec.138 of the NI Act and sentenced to simple imprisonment for seven days and compensation of Rs.85,000/- under Sec.357(3) Cr.P.C. in default, simple imprisonment for two months. Against that the accused preferred the above Criminal Appeal where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The complainant’s case in the trial court was that on 27.09.2002, the accused borrowed a sum of Rs.85,000/- and in discharge of that debt, he issued Crl. Rev.Pet. No.459 of 2005 2 Ext.P1 cheque. When Ext.P1 cheque was presented for encashment it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing. There was no payment. Hence the complainant. In pursuance of trial, complainant was examined as PW1 and his documents were marked as Exts.P1 to P6. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Hence the learned Magistrate convicted the accused. 3. Learned counsel appearing for the 1[st] respondent submitted that the 1[st] respondent is no more. His legal representatives were impleaded as additional respondents 3 to 6. In the circumstance, I heard both sides. ## 4. 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 ## Crl. Rev.Pet. No.459 of 2005 3 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 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. 5. Section 138 of the N.I. Act start with statutory presumption until the contrary is proved that the cheque was issued or drawn for consideration and Crl. Rev.Pet. No.459 of 2005 4 that the complainant had received it for the discharge of existing debt or liability. The burden in such cases is on the accused in view of the statutory presumption to rebut the presumption by leading an adequate and satisfactory evidence to substantiate contention in defence to the prosecution. Although it is not necessary for the accused to enter into a witness box, the burden of proof is required to be discharged by adducing satisfactory evidence to prove that the cheque in question was not issued for discharge of any legally enforceable debt or other liability. The evidence of PW1 shows that when Ext.P1 cheque was presented for encashment it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo, Ext.P3 is the intimation, Ext.P4 is the notice, Ext.P5 is the postal receipt and Ext.P6 is the acknowledgment card. Even though PW1 was cross examined by the defence counsel, nothing has been brought out to discredit his evidence. When a cheque is dishonoured for the reasons stated under Sec.138 NI Act, a statutory presumption can be drawn in favour of the Crl. Rev.Pet. No.459 of 2005 5 ## holder of the cheque. ## 6. Sec.139 of the NI Act reads as follows : 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. 7. Apex Court in **Beena v. Muniappan (AIR 2001 SC 2995)** held that the presumption is rebuttable. In another decision in **Rangappa v. Sri. Mohan [2010 (11) SCC 441]** it is held that what courts have to consider is whether the ingredients of the offence enumerated in S.138 have been met and if so, whether accused was able to rebut the statutory presumption contemplated under Sec.139 of the NI Act. Once execution of the cheque is admitted, the presumption under section 118(a) and 139 of the Act would arise that it is supported by a consideration. These presumptions are rebuttable and the accused can prove the nonexistence of a consideration by raising a probable defence. If the accused is proved to have discharged the Crl. Rev.Pet. No.459 of 2005 6 initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon the failure to prove would disentitle him to the grant of relief on the basis of the one negotibale instrument. Supreme Court in **Krishna Janardhan Bhat** v. **Dattatrayo G. Hegde** [(2008) 141 Comp Case 665 (SC)] held that Section 138 of the Act has three ingredients, viz:- (i) that there was a legally enforceable debt; (ii) that the cheque was drawn from the account of banker for discharge, in whole or in part, of any debt or other liability, which presupposes a legally enforceable debt, and (iii) that the cheque so issued had been returned due to insufficiency of funds. There is no quarrel over the proposition that section 139 of the Act raises a presumption in regard to the second ingredient only. Existence of legally recoverable debt is not a mater of presumption. It merely raises presumption in favour of the holder of the cheque Crl. Rev.Pet. No.459 of 2005 7 that the same has been issued for discharge of any debt or other liability. Also, once execution of the cheque is admitted or proved the presumption under section 118(a) and 139 of the Act would arise that it is supported by consideration. It is the responsibility of the revision petitioner to rebut the presumption by adducing convincing evidence. This position has been explained by the apex court in **Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145].** Another decision in **M.S. Narayana Menon Alias Mani v. State of Kerala and Another [2006 (6) SCC 39** ] it was held that 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/revision petitioner in the trial court to rebut Crl. Rev.Pet. No.459 of 2005 8 the presumption. The trial court rightly appreciated the evidence and had drawn a presumption and convicted the accused. I find no illegality or irregularity in the finding of the court below. In the result, this Criminal Revision Petition is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/28/11/2016 P.A. To Judge