M.J. Paulson v. Babu and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942** ## **Crl.Rev.Pet.No.2617 OF 2008** **CRA 197/2005 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT-I, THRISSUR** **CC 217/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, THRISSUR** ## **REVISION PETITIONER/S:** **M.J.PAULSON, S/O JOHNY MURIYADAN HOUSE, AVINISSERY DESOM AND VILLAGE, THRISSUR TALUK AND DISTRICT** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA** ## **RESPONDENT/S:** **1 BABU, S/O UNNICHEKKAN KARANATH HOUSE, AMMADAM DESOM, PARALAM VILLAGE, THRISSUR TALUK AND DISTRICT 2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI.31.** **R1 BY ADV. SRI.N.M.MADHU** **OTHER PRESENT:** **SR.PP.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** ## **ORDER** Dated this the 6[th] day of October, 2020 This revision petition is directed against the judgment dated 31.03.2008 rendered by the Additional Sessions Judge (Adhoc) Fast Track Court-I, Thrissur in Crl. Appeal No.197 of 2005, whereby the learned Sessions Judge confirmed the conviction and sentence imposed by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “NI Act”). 2. It is the case of the complainant that the accused issued a cheque dated 14.12.1999 for Rs.75,000/- to the complainant for a legally enforceable debt. When the complainant presented the cheque for encashment, the same was returned with an endorsement “account Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** closed” by a cheque returned memo dated - 24.12.1999. On 05.01.2000, the complainant - issued a legal notice to the accused through his advocate calling upon him to pay the cheque amount. The said notice sent by registered post was served on the accused. On - 19.01.2000, the accused sent a reply raising false contentions. Hence, the complaint was lodged before the trial court. 3. Upon consideration of the complaint, the - learned magistrate is _prima facie_ satisfied that the case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the NI Act and the case was taken on file as CC No.217 of 2000 of the Judicial First Class Magistrate Court-III, Thrissur. 4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** accused, to which the accused pleaded not guilty. Thereafter, the complainant was examined as PW1 and marked Exts.P1 to P8. After the witness for the complainant had been examined and before the accused was called on for his defence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The accused denied all the incriminating circumstances appearing in the evidence against him. DWs 1 to 3 were examined and marked Exts.D1 to D3 on his side. 5. On appreciation of evidence, the learned magistrate held that Ext.P1 cheque was issued for a legally enforceable debt. The learned magistrate mainly relied on the oral evidence of PW1 in this regard. According to PW1, Ext.P1 cheque was issued on 14.12.1999 at the residence of PW1 and the accused himself had written and signed the cheque in his presence. The accused himself was examined as DW2. Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** According to him, Ext.P1 blank cheque was issued to DW1, one of his close friends, as security for a loan amount of Rs.20,000/borrowed from one Rockey through DW1. He further stated that though the said amount was paid back, DW1 did not return the cheque to the accused and the present case was initiated in collusion between PW1 and DW1. When DW1 was examined, he stated that he had no acquaintance with PW1 and he did not receive any cheque from the accused at any point of time. DW1 further stated that he was one of the sureties to a loan transaction for the accused and cases had been pending against him and the accused in connection with the same. 6. In order to determine the question whether the offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the Act and the presumptions to Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** be raised as envisaged by the provisions of Sections 118 and 139 of the Act. Section 118 of the Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. 7. It is well settled law that in a revision against conviction and sentence rendered concurrently by the trial court as well as the appellate court, the High Court does not, in Crl.Rev.Pet.No.2617 OF 2008 **==> picture [31 x 8] intentionally omitted <==** the absence of perversity, upset factual findings arrived at by the appellate court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the appellate court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent Crl.Rev.Pet.No.2617 OF 2008 **==> picture [37 x 8] intentionally omitted <==** evidence that there was no debt or liability. In **Bir Singh v. Mukesh Kumar [(2019) 4 SCC** **197],** the Supreme Court held that in view of Section 139 of the Act read with Section 118 of the Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- “ _39. It is not the case of the respondentaccused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative._ _40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”_ Crl.Rev.Pet.No.2617 OF 2008 **==> picture [37 x 8] intentionally omitted <==** 8. In view of the above settled legal principles, even a blank cheque leaf voluntarily signed and handed over by the accused, which is to some payment, would attract the presumption under Section 139 of the NI Act in the absence of cogent evidence to show that the cheque was not issued in discharge of a debt. PW1 adduced evidence to show that he had advanced the amount and the cheque was given to him in repayment of the same. On analyzing the entire evidence in detail, the trial court as well as the appellate court entered a finding that the offence under Section 138 of the NI Act is proved beyond doubt. No interference is warranted in revision. 9. Coming to the question of sentence, the learned counsel for the revision petitioner submitted that the offence under Section 138 of the NI Act is punishable with imprisonment Crl.Rev.Pet.No.2617 OF 2008 **==> picture [37 x 8] intentionally omitted <==** or with fine or with both. At this juncture, the learned counsel for the revision petitioner submitted that the mandatory imprisonment awarded in this case may be converted as fine and consequent compensation in accordance with law. 10.Considering the submission made, it is just and proper to modify the sentence in this proceedings. Accordingly, the sentence imposed by the trial court as confirmed by the appellate court stand modified as follows; i.The revision petitioner/accused is sentenced to pay a fine of Rs.75,000/(Rupees seventy five thousand only) and in default of payment of fine to undergo simple imprisonment for three months. ii. In view of the Covid-19 pandemic, the revision petitioner/accused is given six months time to deposit the amount before the trial court. Thus, the fine amount Crl.Rev.Pet.No.2617 OF 2008 **==> picture [37 x 8] intentionally omitted <==** **==> picture [362 x 76] intentionally omitted <==** simple imprisonment for three months. iii. In case, the fine amount is deposited as ordered hereinabove, the same shall be released to the 1[st] respondent/complainant as compensation in accordance with law. The revision petition is allowed in part accordingly. ## **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/06.10.2020