Mohanan P. S/o Kunhikannan v. M.Vinayaran S/o Valsarajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 23RD DAY OF OCTOBER 2020 / 1ST KARTHIKA, 1942** **Crl.Rev.Pet.No.1919 OF 2009** **CRA 41/2004 OF ADDITIONAL SESSIONS COURT, THALASSERY STC 3616/2003 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THALASSERY** ## **REVISION PETITIONER/S:** **MOHANAN P. S/O KUNHIKANNAN, PUTHENPURAYIL HOUSE, P.O. VADAKKUMPA, THALASSERY TALUK.** **BY ADV. SRI.P.V.ANOOP** ## **RESPONDENT/S:** - **1 M.VINAYARAJAN S/O VALSARAJAN, MEETHELEVAYALIL HOUSE, P.O. CHITTARIPARAMBA, MANANTHERI.** - **2 STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.U.SHAILAJAN R2 BY ADV. PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SR.PP. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRRP No.1919/2009 ..2.. ## **ORDER** Dated this the 23[rd] day of October, 2020 The instant revision petition is directed against the judgment dated 14.12.2007 rendered by the learned Additional Sessions Judge, Thalassery in Crl. Appeal No. 41 of 2004, whereby the appeal was allowed in part while confirming the conviction rendered by the Additional Chief Judicial Magistrate Court, Thalassery in STC No. 3616 of 2003 dated 16.12.2003. The appellate court reduced the sentence of imprisonment of six months to one till rising of the court. In all other respects, the judgment of the trial court was confirmed. The trial court, in addition to the imprisonment, ordered to pay a fine of Rs.70,000/- and in default of payment of fine to undergone simple imprisonment for three months more. CRRP No.1919/2009 ..3.. 2. It is the case of the 1[st] respondent/complainant (hereinafter referred to as, “complainant”) that the revision petitioner/accused (hereinafter referred to as, “accused”) borrowed a sum of Rs.65,000/from the complainant and issued a cheque drawn on Kodiyeri Service Co-operative Bank in the name of the complainant towards repayment of the loan. The complainant presented the said cheque for collection through Ponniam Service Co-operative Bank. But, the cheque was returned unpaid with the endorsement, “funds insufficient”, on 17.03.2003. On 28.03.2003, 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 duly served on 31.03.2003. The accused sent a reply to the notice denying his liability to pay the amount covered under the cheque. CRRP No.1919/2009 **==> picture [31 x 8] intentionally omitted <==** 3. The complainant filed a criminal complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as, “Act”) before the trial court. Upon consideration of the complaint, the learned magistrate is _prima facie_ satisfied that a case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the Act and the case was taken on file as STC No. 3616 of 2003 of the Additional Chief Judicial Magistrate, Thalassery. 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 he pleaded not guilty. Thereafter, the complainant was examined as PW1 and marked Exts.P1 to P5 on prosecution side. After the witness for the complainant had been examined and before the accused was CRRP No.1919/2009 **==> picture [31 x 8] intentionally omitted <==** called on for his defence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure for the purpose of enabling him to personally explain any circumstance appearing in the evidence against him. According to him, Ext.P1 cheque was a signed blank cheque issued by him to one Janardhanan as security and he does not have any nexus or connection with the complainant in any manner. However, in support of his contentions, no evidence has been adduced. 5. On appreciation of the evidence, the learned magistrate held that execution of the cheque was proved by the complainant and that the cheque was dishonoured on account of insufficient funds. Thus, the learned magistrate concluded that the cheque was issued by the accused for a legally enforceable debt. The learned magistrate, mainly relying on the oral evidence adduced by CRRP No.1919/2009 **==> picture [31 x 8] intentionally omitted <==** PW1 and Exts.P1 to P5, held that the defence pleaded by the accused was not probablized during the trial. 6. Heard Sri.P.V.Anoop, the learned counsel for the revision petitioner; Sri.P.U.Shailajan, the learned counsel for the 1[st] respondent; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 2[nd] respondent State. 7. In order to determine the question whether an 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 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 CRRP No.1919/2009 **==> picture [31 x 8] intentionally omitted <==** 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 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 CRRP No.1919/2009 ..8.. 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, 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 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 CRRP No.1919/2009 **==> picture [31 x 8] intentionally omitted <==** proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. 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 evidence that there was no debt or liability. ## 8. 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:- CRRP No.1919/2009 ..10.. “ _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.”_ 9. It is well settled law that a revision against conviction seeking to set aside the judgment of the trial court, the High Court does not, in the absence of perversity, upset factual findings arrived at by the trial court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the trial court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the CRRP No.1919/2009 **==> picture [37 x 8] intentionally omitted <==** lower court misconstrued 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. 10.In view of the above, the trial court rightly held that Ext.P1 cheque was executed by the accused for a legally enforceable debt and the accused failed to repay the amount covered under the cheque within the statutory time despite receipt of statutory notice. The judgment of conviction, which has been confirmed in appeal, is perfectly legal. Where the judgment is reasonable, neither perverse nor suffers from any legal infirmity, the revisional court is not justified in interfering in revision. 11.The trial court convicted and sentenced the CRRP No.1919/2009 **==> picture [37 x 8] intentionally omitted <==** accused to undergo simple imprisonment for six months and also to pay a fine amount of Rs.70,000/- and in default of payment of fine to undergo simple imprisonment for three months more. The appellate court, while confirming the conviction imposed by the trial court, modified the sentence of simple imprisonment of six months to one till the rising of the court and in all other respects, the judgment of the trial court was confirmed. As per the scheme of Section 138 of the Act, the offence is punishable with imprisonment or with fine or with both. Considering the fact that imprisonment is not compulsory, it is just and proper to modify the sentence to one of fine alone. Thus, while confirming the conviction imposed by the trial court, which has been confirmed by the appellate court, the sentence is liable to be modified. In the result, the Crl.R.P. is allowed in CRRP No.1919/2009 **==> picture [37 x 8] intentionally omitted <==** part. The judgment of the trial court, as confirmed by the appellate court, is modified to a fine of Rs.68,000/- (Rupees sixty eight thousand only) and in default of payment of fine to undergo simple imprisonment for a period of three months. In view of the Covid-19 pandemic and the resultant financial crunch, the revision petitioner/accused is given six months time to pay the fine amount before the trial court. In case, the fine amount is not remitted in the trial court within six months from today, the trial court is at liberty to proceed with the execution of sentence in accordance with law. In case, the fine amount is remitted, the same shall be disbursed to the complainant/1[st] respondent in accordance with law. ## **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/23.10.2020