JAMALUDHEEN v. T. NARAYANAN and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938** **Crl.Rev.Pet.No. 4636 of 2007 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.155/2006 of ADDITIONAL SESSIONS COURT (ADHOC)III, MANJERI DATED 22-11-2007** **AGAINST THE JUDGMENT IN ST 4339/2003 of MUNISIFF-MAGISTRATE COURT,PONNANI DATED 10-03-2006** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **----------------------------------------JAMALUDHEEN, S/O.UMMER, CHUNGATH HOUSE, EZHUVATHIRUTHI, P.O.PONNANI, MALAPPURAM DISTRICT.** **BY ADV. SRI.S.MOHAMMED AL RAFI** **RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE:: -----------------------------------** **1. T. NARAYANAN, S/O.KESAVAN, THALAKKATT HOUSE, P.O.KADAVANADU, PONNANI.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R,R1 BY ADV. SMT.M.M.DEEPA R,R1 BY ADV. SRI.JAYKAR.K.S. R,R1 BY ADV. SMT.PREETHY KARUNAKARAN R,R1 BY ADV. SRI.K.RAVI (PARIYARATH) R,R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) R2 BY SR. PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.4636 of 2007 ---------------------------------------------Dated this the 17[th] day of December, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.155/2006 of Additional Sessions Judge, Fast Track Court-III, Manjeri. He was accused in S.T. N.4339/2003 of Munsiff Magistrate, Ponnani which was filed u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I.Act). The learned Magistrate convicted the accused u/s.138 of the N.I. Act and sentenced to simple imprisonment for six months and compensation of 60,000/-, in default₹ simple imprisonment for three months. Against that, he preferred the above criminal appeal before Additional Sessions Judge, Fast Track-III, Manjeri, where the learned Sessions Judge modified the sentence. Being aggrieved by that, the accused preferred this revision petition. 2 Crl.R.P. No.4636/2007 2. The complainant's case in the trial Court is that in discharge of a debt of 60,000/-, the accused issued Ext.P1₹ cheque. 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 payment. Hence the complaint. During trial, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P5. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. The main contention advanced by the revision petitioner is that Ext.P1 was not issued for a legally enforceable debt and the revision petitioner has no liability to the 1[st] respondent. The trial Court, without appreciating that defence, convicted the accused, hence the revisional jurisdiction has to be invoked to rectify the error. 4. According to Section 138 of the Negotiable Crl.R.P. No.4636/2007 3 Instruments Act, where any cheque drawn by a person on an account maintained by him with a bank 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 liability, is returned by the bank, 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 a bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. This deemed provision is subject to the statutory condition that the cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a demand for payment of such amount by giving a notice in writing to the drawer of the cheque and non-payment of due amount after receipt of notice by the drawer of the cheque. Crl.R.P. No.4636/2007 4 5. In the trial Court, 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. Ext.P3 is another memo from Federal bank. Ext.P4 is the notice issued by PW1. Ext.P5 is the acknowledgment card. When Ext.P1 cheque was dishonoured for the reason stated u/s.138 of the N.I. Act, a presumption u/s.139 can be drawn in favour of the holder of the cheque. When complainant proves the existence of a legally enforceable debt, the presumption under Section 139 of the Negotiable Instruments Act starts operating and burden shifts to the accused. ## 6. Section 139 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”. ## Once execution of the cheque is admitted, the 5 Crl.R.P. No.4636/2007 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 non-existence of a consideration by raising a probable defence. If the accused is proved to have discharged the 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 Crl.R.P. No.4636/2007 6 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 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. No rebuttable evidence has been adduced by the revision v. petitioner. Apex Court in _**Narayana Menon State of Kerala**_ [2006(3) KLT 404 (SC)] as follows: “In _Hiten P. Dalal v. Bratindranath Banerjee_ ((2001) 6 SCC 16), a 3-Judge Bench of this Court held that although by reason of Ss.138 and 139 of the Act, the presumption of law as distinguished from presumption of fact is drawn, the court has no other option but to draw the same in every case where the factual basis of raising the presumption is established. Pal. J. speaking for a 3-Judge Bench, however, opined: 'Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that Crl.R.P. No.4636/2007 7 the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the “prudent man” It is the responsibility of the accused to rebut the presumption under Sec.139 NI Act. In the absence of such rebuttal evidence the trial court convicted the accused and sentenced thereunder. I find no illegality or irregularity in Crl.R.P. No.4636/2007 8 the finding of the courts below. However, the sentence the trial Court is modified as imposed by simple imprisonment till rising of Court u/s.138 of the N.I. Act and compensation of 60,000/-, in default simple imprisonment₹ for three months. Crl.R.P. is disposed of as above. **P.D. RAJAN, JUDGE.** acd