Lalitha v. Saseendra Kumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** **Crl.Rev.Pet.No.9 OF 2020** **AGAINST THE JUDGMENT IN CRA 103/2019 DATED 29-11-2019 OF SESSIONS COURT, ALAPPUZHA WHICH CONFIRMED THE JUDGMENT IN ST 4192/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **LALITHA, AGED 59 YEARS B.S.N.L MAIN BRANCH, NEAR IRON BRIDGE, ALAPPUZHA, PIN 688 011.** **BY ADVS. SRI.M.P.MADHAVANKUTTY SRI.V.DEEPAK** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 SASEENDRA KUMAR, ELENJIPARAMBIL HOUSE, VELLAKKINAR WARD, ALAPPUZHA DISTRICT, PIN 688 001** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031** ## **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.01.2020, THE COURT ON 20.01.2020 PASSED THE FOLLOWING:** Crl.R.P.No.9 of 2020 2 ## **R.NARAYANA PISHARADI, J** Crl.R.P.No.9 of 2020 ---------------------------------------------Dated this the 20[th] day of January, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.4192/2013 on the file of the Court of the Judicial First Class Magistrate-I, Alappuzha. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted her thereunder. The trial court sentenced her to pay a fine of Rs.2,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. It was also directed that, if the fine amount is realised, it shall be given to the complainant as compensation. 3. The petitioner filed Crl.A.No.103/2019 before the Court of Session, Alappuzha challenging the order of conviction and Crl.R.P.No.9 of 2020 3 sentence passed against her by the trial court. The learned Sessions Judge confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 4. The concurrent findings of guilty, conviction and sentence made against the petitioner by the courts below are challenged in this revision. 5. Heard the learned counsel for the revision petitioner. 6. The case of the complainant/first respondent is as follows: The complainant and the accused were friends. The accused had borrowed a total amount of Rs.2,00,000/- from the complainant. On 17.04.2013, the accused executed and issued a cheque dated 13.05.2013 for Rs.2,00,000/- in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. She did not send any reply. She did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself Crl.R.P.No.9 of 2020 4 examined as PW1 and Exts.P1 to P6 documents were marked on his side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence regarding the borrowing of amount from him by the accused. He also gave evidence that the accused came to his house and signed the cheque and gave it to him. 9. The plea of the accused was that the complainant had stolen the cheque from her house and that he misused the cheque and filed the complaint. No evidence was adduced by the accused to prove the aforesaid plea. She has no case that she gave any complaint to the police regarding the theft of the cheque by the complainant. She has no case that she reported the loss of the cheque to the bank. In such circumstances, her plea cannot be accepted even as probable. 10. The complainant had sent Ext.P3 lawyer notice to the accused demanding payment of the amount of the cheque. The accused had received the notice. She did not send any reply to the statutory notice sent to her by the complainant. If as a matter of fact, she did not owe Rs.2,00,000/- to the complainant Crl.R.P.No.9 of 2020 5 and if she had not executed and issued the cheque to the complainant in discharge of that liability and if the complainant had stolen the cheque from her house, the accused would have definitely sent a reply to the statutory notice. She would not have remained silent and inactive on receiving the notice from the complainant demanding a huge amount from her. The fact that the notice of demand, though duly received and acknowledged by the accused, did not evoke any response from her is a crucial circumstance against her. The very fact that the accused failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there is merit in the complainant's version (See **Rangappa v. Mohan : AIR 2010 SC 1898** ). 11. There is primarily the evidence of the complainant to explain the circumstances under which he came into possession of the cheque, admittedly drawn on a cheque leaf issued to the accused by her bank to operate her account. No contra evidence has been adduced. On broad probabilities, there is no reason to doubt or suspect the statement on oath of the complainant. The fact that the accused has no reasonable and probable explanation Crl.R.P.No.9 of 2020 6 as to how the cheque travelled from her possession to that of the complainant is certainly a crucial aspect while considering the acceptability of the evidence of the complainant. 12. In the absence of any direct evidence adduced by her to rebut the presumption under Section 139 of the Act, the accused advanced the plea that the complainant had no financial capacity to lend an amount of Rs.2,00,000/-. The complainant produced his bank passbook to prove his financial capacity. 13. Moreover, when the accused could not even raise a probable plea with regard to how her cheque happened to be in the possession of the complainant, the complainant has no obligation to prove source of the money. The complainant is not required to prove the debt as if in a civil case (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287)** . Absence of documentary evidence to show the source of funds with the complainant to advance the loan is not a relevant consideration in view of the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the Act (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC** Crl.R.P.No.9 of 2020 7 ## **1876).** 14. The courts below have properly appreciated the evidence in the case and come to the right conclusion. There is no illegality or impropriety or perversity in the appreciation of evidence by the courts below to warrant interference by this court in exercise of its revisional jurisdiction. Conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed. 15. Learned counsel for the petitioner contended that, in view of the provision contained in Section 29(2) Cr.P.C, the learned Magistrate had no power to impose a sentence of fine of more than Rs.10,000/- on the accused. There is no merit in this contention. The proviso to Section 143 of the Act empowers the Magistrate to award a sentence of fine of more than Rs.10,000/on the accused. 16. Learned counsel for the revision petitioner would then submit that this Court may grant at least some time to the petitioner to pay the fine amount. Having regard to this plea, this Court is of the view that the petitioner can be granted a period of Crl.R.P.No.9 of 2020 8 four months from today to remit the fine amount. 17. In the result, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. The petitioner is granted a period of four months from today to deposit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr