M.K.VIJAYAN v. M/S SHIRRAM INVESTMENTS LTD. and STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938 Crl.Rev.Pet.No. 178 of 2009 ---------------------------- AGAINST THE JUDGMENT IN CRA 415/2006 of COURT OF SESSIONS, PALAKKAD DIVISION AGAINST THE JUDGMENT IN ST 2167/2004 of J.M.F.C.-II,PALAKKAD REVISION PETITIONER: ------------------- M.K.VIJAYAN, S/O.KESAVAN, 55 YEARS MUNDUCHIRAYIL HOUSE, SOUTH ARYAD, ALAPPUZHA. BY ADV. SRI.BABU PAUL RESPONDENT: ----------- 1. M/S.SHRIRAM INVESTMENTS LTD., 2ND FLOOR SUNSHINE COMPLES, T.B.ROAD, PALAKKAD REP. BY, ASST.MANAGER AND P/AT HOLDER M.K.SUMESH,, S/O.PADMANABHAN NAIR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SENIOR PUBLIC PROSECUTOR SRI.C S HRITHWIK R1 BY ADV. SRI.RAJESH NAMBIAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON 26-08-2016 PASSED THE FOLLOWING: ## **ANU SIVARAMAN, J.** - = = = = = = = = = = = = = = = = = = = = = = = = = = ## **Crl.R.P.No.178 of 2009** - = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2016 ## ORDER - 1.This revision arises from a private complaint filed by the 1[st] respondent herein alleging an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The revision petitioner, who was the accused in S.T.No.2167 of 2004 on the file of the JFCM-II, Palakkad, challenges the conviction entered and the sentence passed against him. - 2.The complainant contended that there was a loan cum hypothecation agreement in respect of a bus. It is alleged that in respect of the said agreement, the revision petitioner owed amounts to the complainant and in partial discharge thereof, Ext.P2 cheque was issued. The accused appeared and denied the execution of the cheque. The prosecution examined three witnesses and got marked Exts.P1 to P7. Ext.D1 was marked on the side of defence. The learned magistrate convicted the accused under Section 255(2) Cr.P.C and sentenced the revision petitioner to undergo simple imprisonment for 3 Crl.R.P.No.178/09 2 months and also directed to pay compensation of Rs.30,000/-, in default of which to undergo simple imprisonment for one month. Aggrieved by the said conviction and sentence passed by the learned Magistrate, the revision petitioner filed appeal as Crl.Appeal No.415 of 2006 before the Court of Sessions, Palakkad and the appellate court upheld the conviction and modified the sentence as fine of Rs.35,000/- and in default of which to undergo simple imprisonment for one month. Being aggrieved by the judgment of the Appellate Court, this revision petition is filed. - 3.Heard Sri.Babu Paul, the learned counsel for the revision petitioner, Sri.Rajesh Nambiar, learned counsel for the 1[st] respondent and Sri.C.S.Hrithwik, the learned Public Prosecutor. - 4.The specific case of the revision petitioner was that he has not issued any cheque to the 1[st] respondent/complainant. He contended that a blank cheque had been issued by him to one Balaraman from whom he had purchased the vehicle. The said Crl.R.P.No.178/09 3 Balaraman had an earlier hire purchase agreement with the complainant. The blank cheque had been collusively misutilised by the complainant. 5.In appeal, the revision petitioner contended that he had denied the execution of the cheque in discharge of a legally enforceable debt and challenged the conviction entered on the ground that he had succeeded in rebutting the presumption in law available under Section 139 of the Act by setting up a defence case and proving the same by all means available to him. It was contended that the possession by the complainant of a blank cheque signed by him, having been satisfactorily explained, the reliance placed on his signature in the cheque to draw the presumption against him was erroneous. A petition was filed in Crl.Appeal No.415 of 2006 under Section 91 Cr.P.C. for production of the hire purchase agreement and extract of accounts. The 1[st] respondent-complainant filed an affidavit denying the existence of any hire purchase agreement between the company and either the revision petitioner or Balaraman. Thereafter, it was brought out in evidence that Crl.R.P.No.178/09 4 there was a loan-cum-hypothecation agreement between the parties and the revision petitioner contended that the refusal to produce the documents was ill motivated and the appellate court ought to have drawn an adverse inference against the complainant that the accounts, if produced, would clearly show that there was no legally enforceable debt due to the complainant. - 6.Learned counsel for the revision petitioner relies on the decisions reported in **Johnson Scaria v. State of Kerala** [2006(4) KLT 290], **Krishna Janardhan Bhat v. Dattatraya Hegde** [2008(1) KLT 425 (SC)], **Narayana Menon v. State of Kerala** [2006(3) KLT 404 (SC)], and **Santhi v. Mary Sherly** [2011(3) KLT 273] to contend that the presumption in law available in terms of Section 139 of the Act is rebuttable on the basis of a satisfactory defence which is reasonably substantiated. - 7.Relying on the decision reported in **Johnson Scaria's case** (supra), it is contended that the burden of the accused under Crl.R.P.No.178/09 5 Section 139 of the Act can be rebutted not only on the strength of defence evidence but by relying on broad improbabilities in the prosecution case, evidence and by the acceptability of suggestions made to the prosecution witness in the course of cross examination. It was further held that the obligation to prove the contrary in the face of presumption under Section 139 of the Act is not to disprove the prosecution case in its entirety. It was also found that the burden is always on the prosecution to prove the offence, even one under Section 138 of the Act. The presumption under Section 139 of the Act is a presumption in a law. To rebut the presumption, the accused must prove the contrary to satisfaction of a prudent mind. The proof can be on the basis of defence evidence, admissions by the complainant or its witnesses and the inherent probabilities and otherwise of the prosecution case. - 8.The learned counsel contended that the decisions relied upon by the revision petitioner are on the point that once the signature of the accused in the instrument is admitted, the burden would be on the accused to show that the cheque was Crl.R.P.No.178/09 6 not the one issued in the discharge of a legally enforceable debt. In the instant case, it is submitted that the revision petitioner had failed in discharging such burden and therefore the conviction is well in order. He would also rely on the decision reported in **K.Bhaskaran v. Sankaran Vaidhyan Balan** [AIR 1999 SC 3762] wherein it was held that when the accused denied having issued the cheque although he owned his signature therein, presumption that the cheque was made or drawn on the date which the cheque bears arises. - 9.The revision petitioner had denied the existence of any legally enforceable debt. He had also denied that a cheque was issued by him to the complainant in satisfaction of such a debt. His specific case was that the entire amounts due under the hypothecation agreement had been satisfied. He had also caused the production of a receipt issued by the complainant to Balaraman to substantiate his version. 10.He had sought for production of the hypothecation agreement and the accounts which would have proved the complainant's Crl.R.P.No.178/09 7 case, had they been in existence. Though the petition filed for production of document was allowed by the trial court, the complainant had filed an affidavit stating that there is no such document. However, as PW1, he would state that there is a hire purchase agreement entered into with Balaraman and the same is available. PW3, who was an official of the company also admitted that there is such an agreement. This lends credence to the version of the accused/revision petitioner. In the above circumstances, since the execution of the instrument itself is disputed and since the revision petitioner had succeeded in setting up a plausible defence case, I am of the opinion that the concurrent findings of the courts below to the effect that the presumption under Section 139 of the Act is available as against the revision petitioner is misconceived. - 11.In the above view of the matter, I am of the considered opinion that the ingredients necessary to sustain the conviction under Section 138 of the Act were absent in the instant case. The trial court, as well as the appellate court, erred in the matter of appreciation of evidence. The finding of guilt is contrary to the Crl.R.P.No.178/09 8 evidence on record. Hence, the said finding, conviction and sentence are liable to be interfered with, in this revision, as they are wrong, illegal and improper. In the above circumstances, I allow this revision filed by the accused and set aside the impugned judgment of both the courts below. The revision petitioner is acquitted of the offence under Section 248(1) of the Code of Criminal Procedure. The revision petitioner is already on bail. The bail bond is hereby discharged. sd/- **Anu Sivaraman, Judge** sj /True Copy/ P.A. to Judge