K. Purushothaman v. P. Prakashan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** **Crl.Rev.Pet.No. 2672 of 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.262/2000 of ADDITIONAL SESSIONS COURT FAST TRACK(ADHOC-1), ALAPPUZHA DATED 24-04-2003** **AGAINST THE JUDGMENT IN ST 464/1995 of JUDICIAL FIRST CLASS MAGAISTRATE COURT-I, ALAPPUZHA DATED 30-09-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **K. PURUSHOTHAMAN, MANGATTUTHARA, KUPPAPURAM P.O., KUTTANADU TALUK, NOW RESIDING AT SHIVAGIRI MADOM, VARKALA, THIRUVANANTHAPURAM** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **------------------------------------** **1. P. PRAKASHAN, SASI BHAVAN, ERAVUKADU WARD, THIRUVAMPADY P.O, ALAPPUZHA.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **R1 BY ADV. SRI.ROY CHACKO** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.2672 of 2003 ---------------------------------------------Dated this the 6[th] day of October, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl. Appeal No.262/2000 of Additional Sessions Judge, Fast Track (Adhoc-I), Alappuzha. He was the accused in S.T. No.464/1995 before Judicial First Class Magistrate Court-I, Alappuzha, which was filed by the 1[st] respondent 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 three months. Against that, the accused preferred the above Criminal appeal before Additional Sessions Court, Alappuzha, where the learned Judge dismissed the appeal. Being aggrieved by that, accused preferred this revision petition. Crl.R.P. No.2672/2003 2 2. The complainant's case in the trial Court is that on 4.8.1994, the accused had borrowed a sum of 10,000/-₹ from the complainant and issued a cheque drawn on State Bank of India, ADB branch, Alappuzha. Again, he borrowed ₹20,000/- on 6.8.1994, and 40,000/- on 8.8.1994 and₹ issued cheques drawn on SBI, ADB, Alappuzha for the said amount. When cheques were presented for encashment through State Bank of India, Alappuzha branch, those cheques were dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a lawyer notice, which was returned as unclaimed. In the circumstances, he filed the above complaint before Judicial First Class Magistrate Court, Alappuzha. During trial, the complainant was examined as PW1. The Bank manager was examined as PW2. The documentary evidence were marked as Exts.P1 to P11. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Crl.R.P. No.2672/2003 3 The learned Magistrate convicted the accused. 3. Heard both sides. The main contention advanced by the learned counsel for the revision petitioner is that the revision petitioner issued Exts.P1 to P3 cheques as security for the liability. After discharging the liability, the cheque leaves were not returned by the complainant. 4. While adverting to the above contention, I have examined the transaction in this case. The 1[st] respondent was examined as PW1 to prove his case in the trial Court. His evidence shows that the revision petitioner borrowed ₹10,000/on 4.8.1994, ₹20,000/on 6.8.1994 and ₹40,000/- on 8.8.1994 and in discharge of that debt, he gave Exts.P1 to P3 cheques drawn on State Bank of India, ADB branch, Alappuzha. When cheques were presented for encashment, those were dishonoured for the reason of funds insufficient. Exts.P4 to P6 are the dishonour memos. Ext.P7 is the postal receipt. Ext.P8 is the copy of lawyer notice. Ext.P9 is the unclaimed notice. Ext.P10 is the cheque 4 Crl.R.P. No.2672/2003 remittance memo and Ext.P11 is the ledger extract. PW2 Bank Manager deposed that when Exts.P1 to P3 were presented for encashment, those were dishonoured for the reason of funds insufficient. It is true that the 1[st] respondent demanded the amount by giving a notice in writing, which was returned as unclaimed. On a perusal of the evidence, it is clear that all statutory formalities were properly proved by PW1. The evidence of PW2 shows that there was insufficient fund in the account of the revision petitioner. When the cheque is issued in discharge of a debt and it is dishonoured, 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. The principle drawing presumptions has been explained by the Apex Court in _**Hiten P. Dalal**_ v. _**Bratindranath Banerjee**_ (AIR 2001 SC 3879], _**Beena**_ v. _**Muniappan**_ (AIR 2001 SC 2995) and v. _**Narayana Menon State of Kerala**_ [2006 (3) KLT 404 Crl.R.P. No.2672/2003 5 (SC)]. On a perusal of the evidence in this case, it is clear that a presumption can be drawn in favour of the holder of the cheque. 5. Now the question is whether the revision petitioner has discharged his initial burden to rebut the presumption u/s.139 of the N.I. Act. The only contention raised by the revision petitioner in the trial court was that he had returned the amount, but the 1[st] respondent retained the cheque leaves after payment. He also contended that the cheque leaves were given as security. Apex Court in v. _**Narayana Menon State of Kerala**_ [2006(3) KLT 404 (SC)] held 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.2672/2003 6 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”. In the absence of oral and documentary evidence, the above contention raised by the revision petitioner is to be rejected. 6. Apex Court in **Mandvi Co-operative Bank Ltd V. Nimesh B Thakore** (AIR 2010 SC 1402) held that a rebuttable presumption is created under Section 139 that Crl.R.P. No.2672/2003 7 cheque was issued by the drawer in discharge of any debt or liability owed by him to its holder. The same principle was followed in **Anil Hada V. Indian Acrylic Ltd** ( AIR 2000 SC 145). No rebuttal evidence has been adduced in the trial Court, hence the learned Magistrate observed that the cheques were issued in discharge of a debt or liability, therefore, a presumption was drawn in favour of the holder of the cheque. The trial Court rightly appreciated the evidence and convicted the revision petitioner u/s.138 of the N.I. Act. I do not find any illegality in the finding of the trial Court. Considering the nature of offence and the circumstance under which it was committed, the revision petitioner is sentenced to imprisonment till rising of Court u/s.138 of the N.I. Act and compensation of 70,000/- u/s.357(3)Cr.P.C. ₹ Crl.R.P. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd