High Court of KeralaSingle Judge2015-09-25Conviction under Section 138 NI Act upheld; sen...

Jayapravathy v. State of Kerala and M. Chandran

Case / Petition Number:Crl.Rev.Pet.No.355 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2015-09-25
Court Decision / Holding: The revision petition is disposed of as above. The High Court maintained the conviction under Section 138 NI Act, but modified the sentence: imprisonment till rising of the Court and compensation of ₹35,000, in default of payment of compensation, simple imprisonment for two months. The petitioner is directed to surrender before the Judicial First Class Magistrate Court, Chittur within thirty days for receiving the modified sentence; failure to do so would entail issuance of a Non-Bailable Warrant.
Final Disposition: Conviction under Section 138 NI Act upheld; sentence modified to imprisonment till rising of the Court and compensation ₹35,000 (with default to two months imprisonment); directed surrender within 30 days for enforcing the modified sentence; NBW if not surrendered.

Parties to the Case

Appellants / Petitioners

Jayapravathy, W/o. Jayasankar, residing at Kaithakuzhiyil House, Erattakulam Post, Elapully Palakkad District

Respondents

The State of Kerala represented by the Public Prosecutor, High Court of Kerala Ernakulam
M. Chandran, S/o. Murugan, residing at Sou d etc. CHITTUR POST, PALAKKAD DISTRICT

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.C. Suresh Menon
• Sri. Prince K. Elias
• Smt. P.K. Radhika

Counsels for Respondents

• Public Prosecutor Sri. N. Suresh

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition (Crl.Rev.Pet.No.355 of 2003) arising from a conviction under Section 138 of the Negotiable Instruments Act for issuance of a cheque dishonoured for insufficient funds. The petitioner Jayapravathy (accused) challenged the concurrent conviction and sentence recorded in the trial court (S.T. No.1171/1997, JMFC, Chittur) and confirmed by the Addl. Sessions Fast Track Court, Palakkad, in Crl.Appeal No.67/1998, dated 19.9.2002. The complainant alleged that the accused borrowed ₹35,000 and issued a cheque on Dhanalakshmi Bank, Palakkad, which was dishonoured; notice was given and payment default ensued. The trial court convicted and sentenced the accused to two months’ simple imprisonment and a fine of ₹5,000, with an additional one month’s imprisonment on default. The appellate court affirmed the judgement. The revision petition argued that the cheque related to a transaction involving the accused’s husband and another person in her presence, and sought a lenient sentence. The Kerala High Court upheld the conviction but exercised its power to modify the sentence. Relying on Beena v. Muniappan (AIR 2001 SC 2995) to endorse the presumption under Section 139 NI Act, the court substituted the sentence with imprisonment till rising of the Court and compensation of ₹35,000, with default imprisonment of two months, and directed surrender within 30 days for enforcing the modified sentence. The petition was disposed of accordingly.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 139 of the Negotiable Instruments Act

Legal Doctrines & Maxims

Presumption under Section 139 of the Negotiable Instruments Act
Beena v. Muniappan (AIR 2001 SC 2995) - authority for drawing presumption in NI cheque cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the revision petitioner contended that the cheque was issued in connection with a transaction between the accused’s husband and another person, in her presence. They submitted that the sentence imposed by the trial Court (two months' imprisonment and ₹5,000 fine) is harsh in the circumstances, and the matter warrants modification by reducing punishment while sustaining conviction. It was urged that since the transaction primarily involved the husband, personal liability of the accused under Section 138 NI Act should be appropriately scrutinized, and a lenient sentence would meet the ends of justice. The argument emphasized the need to tailor punishment to the factual matrix rather than applying a blanket penalty under the NI Act.

Contentions of Respondents

The State/Complainant contended that the conviction under Section 138 NI Act is legally sound and the presumption under Section 139 NI Act appropriately applies once dishonour is established. They supported the lower courts’ reasoning and maintenance of conviction, asserting that the sentence moderation should only reflect appropriate enforcement of penalties and deterrence, while not undermining the statutory rights of the complainant. They argued that the petition does not warrant a reversal of the conviction and that the observed facts justify the Court’s power to modify the sentence in the interests of justice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Beena v. Muniappan	AIR 2001 SC 2995	Positive	Cited to support the proposition that a presumption under Section 139 NI Act can be drawn in respect of cheque dishonour and to justify the reliance on presumption in the case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2015/3RD ASWINA, 1937** **Crl.Rev.Pet.No. 355 of 2003 ( ) -------------------------------AGAINST THE JUDGMENT IN Crl.Appeal No. 67/1998 of ADDITIONAL SESSIONS JUDGE FAST TRACK COURT-I, PALAKKAD DATED 19.9.2002 AGAINST THE JUDGMENT IN ST 1171/1997 of J.M.F.C.,CHITTUR DATED 16-05-1998** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-------------------------------------------JAYAPARVATHY, W/O.JAYASANKAR, RESIDING AT KAITHAKUZHIYIL HOUSE, ERATTAKULAM POST, ELAPULLY PALAKKAD DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.PRINCE.K.ELIAS SMT.P.K.RADHIKA** **RESPONDENT(S)/RESPONDENTS NOT PARTY/COMPLAINANT: --------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **2. M.CHANDRAN, S/O.MURUGAN, RESIDING AT SOUDHAMBIKA JUNCTION, CHITTUR POST, PALAKKAD DISTRICT. R1- BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-09-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.355 of 2003 ---------------------------------------------Dated this the 25[th] day of September, 2015 ## **ORDER** Revision petitioner, who is the appellant in Crl.Appeal No.67/1998 on the file of Addl. Sessions Fast Track Court-I, Palakkad, challenges the concurrent finding of conviction u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). She was accused in S.T. No.1171/1997 of Judicial First Class Magistrate Court, Chittur and convicted u/s.138 of the N.I. Act and sentenced to simple imprisonment for two months and to pay a fine of ₹5,000/-, in default of payment of fine, simple imprisonment for a further period of one month, which was confirmed by the appellate Court. The complainant in the trial Court is the Crl.R.P.No.355/2003 2 2[nd] respondent in this revision petition. 2. The complainant's case in the trial Court was that the accused borrowed a sum of 35,000/- from him₹ and in discharge of that debt, she issued a cheque drawn on Dhanalakshmi Bank, Palakkad branch. When that cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The 2[nd] respondent/ complainant demanded the due amount by giving a notice in writing to the accused. Even after receipt of notice, there was no repayment from the side of the revision petitioner. In the circumstances, the above complaint was filed in the trial Court. 3. During trial, the complainant was examined as PW1 and the Bank Manager was examined as PW2. Exts.P1 to P5 were marked as documentary evidence. The incriminating circumstances brought out in evidence were Crl.R.P.No.355/2003 3 denied by the accused while questioning her. She did not adduce any defence evidence. After anlysing the evidence on record, the trial Court convicted the revision petitioner. 4. When the matter came up for hearing, the learned counsel appearing for the revision petitioner contended that the cheque was issued in connection with the transaction between the husband of the accused and another in her presence. The learned counsel submitted that the sentence imposed by the trial Court, which was upheld by the appellate Curt, is too harsh and therefore,he prays to modify the sentence. 5. According to Section 138 of the N.I. 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 Crl.R.P.No.355/2003 4 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. 6. To prove the allegation, the 2[nd] respondent was Crl.R.P.No.355/2003 5 examined as PW1 in the trial Court. Ext.P1 is the cheque. Ext.P2 is the dishonour memo. Ext.P3 series are the lawyer notice, postal receipt and acknowledgment card. Ext.P4 is the reply notice. Ext.P5 is the extract of the ledger. PW2 deposed that when Ext.P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. When the cheque is dishonoured for the reason of funds insufficient, a presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the cheque. The principle drawing presumptions has been explained by the Apex Court in **Beena** v. **Muniappan** (AIR 2001 SC 2995). The trial Court and the Appellate Court appreciated that legal position and convicted the revision petitioner. I do not find any illegality in the conviction passed by the trial Court. The trial Court sentenced the revision petitioner to imprisonment for two months and to Crl.R.P.No.355/2003 6 pay fine of ₹5,000/-, which needs interference. Therefore, I modify the sentence as follows: The revision petitioner is sentenced to imprisonment till rising of the Court and to pay compensation of ₹35,000/- , in default of payment of compensation, simple imprisonment for two months. The revision petitioner is directed to surrender before Judicial First Class Magistrate Court, Chittur within thirty days from today, for receiving modified sentence, failing which, the Judicial First Class Magistrate, Chittur shall issue Non Bailable Warrant against the revision petitioner. The revision petition is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd Crl.R.P.No.355/2003 7 Crl.R.P.No.355/2003 8