Mary Matha College of Engineering and Technology v Saraswathy Nair Bhairavi Nilayam and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938** **CRL.REV.PET.NO. 222 OF 2014 ()** **-------------------------------** **AGAINST THE JUDGMENT IN CRA NO.411/2010 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK COURT-I, THIRUVANANTHAPURAM DATED 29-02-2012** **AGAINST THE JUDGMENT IN CC NO.232/2008 OF CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM DATED 16-04-2010** **------------------** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED PERSONS 1 TO 3:** **--------------------------------------------------------** **1. MARY MATHA COLLEGE OF ENGINEERING AND TECHNOLOGY PALLIYODE, DALUMUGHAM P.O., NEYYATTINKARA THIRUVANANTHAPURAM, REPRESENTED BY IT'S CHAIRMAN** **2. WILSON NADAR** **CHAIRMAN OF MARY MATHA COLLEGE OF ENGINEERING AND TECHNOLOGY, RESIDING AT AVIKUZHY VEEDU, OLATHANNI, NEYYATTINKARA.** **3. W. SHAJI VICE CHAIRMAN OF MARY MATHA COLLEGE OF ENGINEERING AND TECHNOLOGY, RESIDING AT AVIKUZHY VEEDU, OLATHANNI NEYYATTINKARA.** **BY ADV. SRI.SOORAJ T.ELENJICKAL SMT.SANDHYA R. NAIR** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:** **---------------------------------------------** **1. SARASWATHY NAIR BHAIRAVI NILAYAM, KAUMKUMCHERRY P.O., PRAVANTHOOR, KOLLAM DISTRICT, PIN-691 014.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.V.SUNIL KUMAR (PANACHAMOODU) R2 BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **----------------------Crl. R.P. No.222 of 2014 ---------------------------------Dated this the 20[th] day of December, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.411 of 2010 of the Additional Sessions Judge, Fast Track-I, Thiruvananthapuram. He was the accused in C.C. No.232 of 2008 of the Chief Judicial Magistrate, Thiruvananthapuram which was filed under Sec.138 of the Negotiable Instruments Act (for short, the NI Act). The 1[st] accused is an institution and 2[nd] and 3[rd] accused are the office bearers (Chairman and Vice Chairman) of the 1[st] accused. The learned Magistrate convicted the 2[nd] and 3[rd] accused and sentenced to undergo simple imprisonment for three months each and fine of Rs.2,30,000/- in default, imprisonment for 45 days each. If fine amount is realised, Rs.2,20,000/- shall be paid to the complainant under Sec.357(1) Cr.P.C. 1[st] accused is an institution hence no separate sentence was awarded. Against that, they preferred the above Criminal Appeal, Crl. R.P. No.222 of 2014 2 where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. Complainant's case in the trial court is that in discharge of a debt of Rs.2,20,000/- the accused issued Ext.P1 cheque. 2[nd] and 3[rd] accused who are the Chairman and Vice Chairman of the 1[st] accused promised to arrange a seat to B.Tech for her daughter Allovy B. Nair in the engineering college of the 1[st] accused. But they failed to arrange seat. The accused are bound to pay Rs.2,20,000/to the complainant. In discharge of that debt, 2[nd] and 3[rd] 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. There was no payment, hence the complaint. In pursuance of trial, complainant was examined as PW1 and her documents were marked as Exts.P1 to P7 series. Incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. Crl. R.P. No.222 of 2014 3 3. The Section 138 of the Negotiable Instruments Act starts with a deemed provision. It says that 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 nonpayment of due amount after receipt of notice by the drawer of the cheque. Crl. R.P. No.222 of 2014 4 4. In this backdrop, I have examined the evidence of PW1 which shows that Ext.P1 was issued by the accused in discharge of a debt of Rs.2,20,000/-. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Exts.P2 and P3 are the memos. Complainant demanded the money by giving a notice in writing. Ext.P4 is the lawyer notice. Exts.P5 and P6 are the postal acknowledgment cards. Ext.P7 series are the postal receipts. When cheque is 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. 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 Crl. R.P. No.222 of 2014 5 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. 5. 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. 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. 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 negotiable Crl. R.P. No.222 of 2014 6 instrument. Apex Court in **Beena v. Muniappan (AIR 2001 SC 2995)** and **M.S. Narayana Menon Alias Mani v. State of Kerala and Another [2006 (6) SCC 39** ] held that the presumption is rebuttable and in order to rebut the presumption the accused has to adduce cogent and convincing evidence. Another decision in **Rangappa v. Sri. Mohan [2010 (11) SCC 441]** apex court 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. Since no rebuttal evidence has been adduced in the trial court, the learned Magistrate rightly convicted the accused which was upheld by the appellate court. 6. The 1[st] accused is a reputed engineering college, offered admission to one Allovy B. Nair for B.Tech course in that college, received money and subsequently they neither gave admission nor returned the money. Considering the facts and circumstances and the submission made by the counsel appearing for the Crl. R.P. No.222 of 2014 7 respondent, even though this revision petition is preferred by the 2[nd] and 3[rd] accused, the sentence imposed by the trial court needs modification. Accordingly the sentence imposed by the trial court is modified as follows: The 2[nd] and 3[rd] accused are jointly sentenced to imprisonment till rising of the Court and a fine of Rs.4,40,000/-, i.e. double the cheque amount, in default of payment of fine, simple imprisonment for one year. If fine amount is realised, Rs.4,00,000/- shall be disbursed to the 1[st] respondent/complainant. No separate sentence to the 1[st] revision petitioner. This Criminal Revision Petition is disposed of accordingly. Sd/- **P.D. RAJAN JUDGE** / True Copy / NS/20/12/2016 P.A. To Judge