Mohanakumar Athira v. State of Kerala and P. Parameswaran Thampi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** **Crl.Rev.Pet.No.946 OF 2012** ## **ST 527/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -VIII, THIRUVANANTHAPURAM** **CRL.A 343/2009 OF THE FIRST ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/S:** **MOHANAKUMAR ATHIRA, MRAT 38/2, PANAYILVILAKOM, MARUTHANKUZHY, KANJIRAMPARA P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.SANTHAN V.NAIR SRI.V.V.MITHUN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-31** - **2 P.PARAMESWARAN THAMPI SREEPADOM, T.C. 22/812(2), ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM-695009.** **R2 BY ADV. SRI.G.SUDHEER** ## **OTHER PRESENT:** ## **SR.PP.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-11-2020, THE COURT ON 23-11-2020 PASSED THE FOLLOWING:** Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** ## **O R D E R** This criminal revision petition is directed against the judgment dated 28.03.2012 rendered by the First Additional Sessions Court, Thiruvananthapuram, in Crl.Appeal No.343 of 2009, whereby the learned Additional Sessions Judge allowed the appeal in part, confirming the conviction under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, 'the NI Act') and modifying the sentence rendered by the trial court to undergo imprisonment till the rising of the court and also to pay a compensation of Rs.75,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months more under Section 138 of the NI Act. 2. The revision petitioner was the accused in ST No. 527 of 2006 on the file of the Judicial Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** First Class Magistrate Court-VIII, Thiruvananthapuram and the appellant in Crl.Appeal No. 343 of 2009 on the file of the Additional Sessions Court-I, Thiruvananthapuram. The 2[nd] respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the NI Act against the accused. 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 ST No. 527 of 2006. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated. 3. It is the case of the complainant that the accused borrowed a sum of Rs.70,000/- from the Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** complainant and issued a cheque dated 01.03.2004 for Rs.70,000/- drawn on the account maintained by the accused with the Canara Bank, Puthenchantha Branch, Thiruvananthapuram. The complainant presented the cheque for encashment before the State of Bank of Travancore, Manacaud Branch, but, the cheque was dishonoured for the reason, 'funds insufficient'. Statutory notice was issued on 15.04.2004 to the accused calling upon him to pay the amount. The accused received the legal notice on 21.04.2004 and issued reply notice dated 30.04.2004, denying the liability covered under the cheque. 4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P5 on prosecution side. Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** After PW1 had been examined, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the circumstances. He further stated that his father had chitty transaction with the wife of the complainant and as a guarantee for the transaction, his father entrusted a signed blank cheque of the accused with the wife of the complainant. He further stated that even after the payment of the chitty amount, the cheque was not returned in spite of repeated demands. However, no defence evidence was adduced on his side. 5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for the reason, - 'funds sufficient'. The complainant issued Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. Hence, the learned magistrate concluded that the cheque was issued by the accused for discharge of a debt or liability. 6. Heard Sri.K.Sudhirkumar, the learned counsel for the revision petitioner; Sri.G.Sudheer, the learned counsel for the 2[nd] respondent; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 1[st] respondent-State. 7. In order to determine the question whether the offence punishable under Section 138 of the NI Act is made out against the accused, it is necessary to examine the Penal provision of Section 138 of the NI Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the NI Act. Section 118 of the NI Act provides certain presumptions to be raised laying down some Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** 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 NI 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 NI Act provides that 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 of the NI Act for the discharge, in whole or in part, of any debt or other liability. Applying the Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the NI Act, it becomes evident that in a trial under Section 138 of the NI 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 NI Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was Crl.R.P. No.946 of 2012 **==> picture [31 x 8] intentionally omitted <==** 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. 8. In this case, the complainant was examined as PW1. He stated that the accused borrowed an amount of Rs.70,000/- from him for business purpose and issued Ext.P1 cheque for a legally enforceable debt. The main contention of the accused is that Ext.P1 cheque was issued as a blank signed cheque to the wife of the complainant by his father as security in a chitty transaction between the wife of the complainant and the father of the accused. According to the accused, the entire amount was repaid in installments through savings Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** bank account maintained by the wife of the complainant with the Thiruvananthapuram District Co-operative Bank. According to the accused, even after repayment of the chitty amount, the cheque was not returned by the wife of the complainant. 9. During the pendency of the revision, the revision petitioner filed Crl.M.Appl. No. 893 of 2017 seeking to accept additional documents. Along with the criminal revision petition, the revision petitioner had produced the receipts as Annexure A, evidencing payment of money during the chitty transaction with the wife of the 2[nd] respondent. It is a fact that the chitty transaction was denied by the complainant at the time of trial. Hence, it is submitted that a cheque, which is the subject matter of the case, was issued as security for a chitty transaction between the father of the accused and the wife of the complainant. He Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** further stated that the reply notice and postal acknowledgment evidencing the receipt of reply notice was not produced before the trial court. Hence, the reply notice and acknowledgment are sought to be produced. Relying on **Chitrapandi** v. **Janakaraj** [2008 KHC 5461], the learned counsel for the revision petitioner contended that the revisional court can exercise the powers under Section 391 of the Code of Criminal Procedure and its jurisdiction is very wide to prevent abuse of process of law and to correct the injustice being caused to any of the parties to the case. 10.A definite case was put up by the accused in the case that the cheque in question was issued as a security for the chitty transaction of his father with the wife of the complainant and the same was evidenced by the receipts produced along with the revision Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** petition. It is well settled that the power under Section 391 of the Cr.P.C. can be invoked whenever the court thinks it necessary, in the interest of justice, to take additional evidence in order to arrive at a just decision of the case or in a case where there would be failure of justice if the additional evidence is not taken. In the case on hand, signature in Ext.P1 is not denied by the accused. Once the signature in Ext.P1 is admitted, the burden of proof shifts to the accused to prove that it was not supported by consideration. All the statutory formalities for initiating prosecution under Section 138 of the NI Act have been complied with. In the complaint, the complainant admitted that he received reply notice from the accused. Hence, the non production of reply notice and acknowledgment card are not material in this case. Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** 11.In **Janata Dal** v. **H.S.Chowdhary & Others** [1992 KHC 931] _,_ the apex court held in paragraph 128 that the object of the revisional jurisdiction under Section 401 of the Cr.P.C. is to confer power upon this Court to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. It was further held that the controlling power of the High Court is discretionary in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances, which vary greatly from case to case. The contention of the accused is that the father of the accused deposited the entire chitty amount taken as loan in the account of the wife of Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** the complainant, for which receipts are available with the father of the accused. To prove the receipts, additional documents are sought to be admitted. The allegation is that the complainant started demanding exorbitant interest from the father of the accused and when the father of the accused did not heed to the demand, the complainant presented the security cheque for encashment. 12.It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed that the Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** holder of a cheque received the cheque of the nature referred to in Section 138 of the NI 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 she 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 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 NI Act read with Section 118 of the NI 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:- Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** _“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.”_ 13.In view of the above, both the trial court and the appellate court rightly held that the burden was on the accused to disprove the initial presumption under Sections 118 and 139 of the NI Act. The burden is not discharged rightly. The complaint was filed before the trial court in 2006. The complainant has been prosecuting this case for the last 14 years. The accused has not adduced rebuttal evidence before the trial court. It is not just and Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** proper to remand the case for retrial on the strength of the additional documents produced. In the eye of law, merely because the father of the accused deposited the entire chitty amount taken as loan in the account of the wife of the complainant, for which receipts are available with the father of the accused, the same itself is not a ground to hold that the transaction, as evidenced by Ext.P1 cheque, is false in view of the presumption contemplated under Sections 118 and 139 of the NI Act. It is not just and proper to remand a case for further evidence after the lapse of 14 years. Hence, the conviction against the accused for the offence under Section 138 of the NI Act is only to be upheld. 14.Coming to the question of sentence, Ext.P1 cheque was executed as early as on 01.03.2004. The accused has been conducting this criminal case for the last 14 years. Considering the Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed. In the result, the criminal revision petition is partly allowed. The conviction against the accused under Section 138 of the NI Act is confirmed. The sentence is modified as follows:- The accused is sentenced to pay a fine of Rs.70,000/- (Rupees seventy thousand only) and in default of payment of fine to undergo simple imprisonment for a period of three months. In view of the situation prevailing in the country due to Covid-19 pandemic, the accused is given six months time from today to pay the fine amount. In case the fine amount is deposited by the accused before the trial court as ordered, the same shall be disbursed to the complainant as compensation in accordance with rules. In Crl.R.P. No.946 of 2012 **==> picture [37 x 8] intentionally omitted <==** the event of failure to pay the fine amount, the trial court shall execute the sentence in accordance with law. Registry is directed to send back the records to the trial court for execution of sentence. Sd/- ## **N.ANIL KUMAR** ## **JUDGE** Bka/- Crl.R.P. No.946 of 2012 ..20.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPIES OF THE RECEIPTS EVIDENCING PAYMENT IN S.B.A/C NO.77 WITH TRIVANDRUM DISTRICT COOPERATIVE BANK LTD. IN THE NAME OF PADMAJA THAMPI.** **ANNEXURE B TRUE COPY OF THE REPLY NOTICE DATED 30.4.2004 SENT BY REVISION PETITIONER.** **ANNEXURE C TRUE COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF THE COPY OF THE REPLY NOTICE.**