N. Moidu v. State of Kerala & Amoo Haji

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2015-09-29
Court Decision / Holding: Conviction under Section 138 NI Act affirmed; sentence modified to imprisonment till rising of the Court and to pay compensation of ₹37,500 under Section 357(3) Cr.P.C.; in default of payment, simple imprisonment for three months. If the cheque amount is deposited, it shall be disbursed to the legal heirs of the 2nd respondent. The revision petitioner is to surrender before the Chief Judicial Magistrate, Kasaragod, forthwith. The petition is disposed with these directions.
Final Disposition: Partially allowed; conviction under NI Act maintained; sentence modified as noted above; petition disposed.

Parties to the Case

Appellants / Petitioners

N. Moidu

Respondents

State of Kerala represented by the Public Prosecutor
Amoo Haji

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri I.V. Pramod

Counsels for Respondents

• Public Prosecutor Sri N. Suresh
• Adv. Sri Suresh Kumar Kodoth

Case Synopsis & Summary

This is a criminal revision petition by N. Moidu challenging a conviction under Section 138 of the Negotiable Instruments Act for issuing a cheque in discharge of a debt to Amoo Haji, which bounced for insufficient funds. The case began in C.C. No. 320/1998 before the Chief Judicial Magistrate, Kasaragod, where the accused was convicted and sentenced to three months’ simple imprisonment and to pay ₹38,500 under Section 357(3) Cr.P.C. The conviction and the sentence were confirmed by the Addl. Sessions Judge (Adhoc-I), Kasaragod, in Crl. Appeal No. 183/2000, leading Moidu to file this revision petition. The prosecution relied on the statutory presumption under Section 139 NI Act, arguing that the cheque was issued for a debt and that the accused failed to rebut this presumption. The trial court had noted that Ext. P1 cheque was dishonoured for insufficient funds and that the complainant provided documentary proof (Exts. P2–P4). The revision petition contended that the sentence was too harsh and suggested payment of compensation to the complainant’s legal heirs. The court observed that the complainant died during pendency; the public prosecutor did not oppose the relief. After hearing, the High Court held that imprisonment for three months was excessive but retained the conviction. It modified the sentence to imprisonment till rising of the Court and reduced the compensation to ₹37,500, directing deposit to the legal heirs if the cheque amount was deposited, and ordered the revision petitioner to surrender to the CJM Kasaragod. The petition was disposed accordingly.

Provisions of Law Cited

Negotiable Instruments Act, Section 138Negotiable Instruments Act, Section 139Cr.P.C., Section 357(3)

Legal Doctrines & Maxims

Presumption in favour of holder of cheque under Section 139 NI Act (rebuttable)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner submitted that the three months’ imprisonment was harsh and the remedy lies in the revisional jurisdiction to correct illegality. He expressed willingness to pay the compensation to the legal heirs of the deceased 2nd respondent and pointed to a conciliatory approach given the death of the complainant during pendency; the Public Prosecutor did not oppose this course.

Contentions of Respondents

The Respondents’ side relied on the statutory presumption in favour of the holder under Section 139 NI Act, emphasizing that the cheque was issued for a debt and that there was no rebuttal evidence produced by the petitioner. The courts below rightly upheld conviction under Section 138 NI Act; the evidence and material on record justified the presumption and the conviction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Beena v. Muniappan	AIR 2001 SC 2995	Positive	Cited to support the principle that, when a cheque is dishonoured, Section 139 NI Act creates a presumption in favor of the holder, which the accused must rebut with evidence; the court relied on this principle.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2015/7TH ASWINA, 1937** **Crl.Rev.Pet.No. 612 of 2004 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL 183/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 02-01-2004** **AGAINST THE JUDGMENT IN CC 320/1998 of CHIEF JUDICIAL MAGISTRATE,KASARAGOD DATED 28-06-2000** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-------------------------------------------** **N.MOIDU, S/O. ABDUL KHADER @ KHADERCHA, NELLIKKATTA, P.O. NEKRAJE, KASARAGOD.** **BY ADV. SRI.I.V.PRAMOD** **RESPONDENT(S)/STATE & RESPONDENT/COMPLAINANT:: -----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. AMOO HAJI, S/O. LATE HASSANKUTTY, RESIDING AT PADINJAR KIZHAKKEKARA HOUSE, P.O. UDMA UDMA VILLAGE, KASARAGOD TALUK.** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH R2 BY ADV. SRI.SURESH KUMAR KODOTH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-09-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.612 of 2004 ---------------------------------------------Dated this the 29[th] day of September, 2015 ## **ORDER** The revision petitioner, who is the appellant in Crl. Appeal No.183/2000 on the file of Additional Sessions Judge (Adhoc-I), Kasaragod, challenges judgment of conviction u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). He was the accused in C.C.No.320/1998 of Chief Judicial Magistrate, Kasaragod for offence u/s.138 of the N.I. Act, he was convicted and sentenced to undergo simple imprisonment for three months u/s.138 of the N.I. Act and to pay compensation of ₹38,500/u/s.357(3) Cr.P.C. Against that, the accused/revision petitioner preferred the above appeal, Crl.R.P. No.612/2004 2 which was dismissed. Being aggrieved by that, he approached this Court with this revision petition. The complainant is the 2[nd] respondent in this revision petition and he died during the pendency of the revision petition. 2. The complainant's case in the trial Court was that on 20.4.1998 the accused borrowed a sum of ₹37,500/- from him and in discharge of that debt, he issued Ext.P1 cheque. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. He demanded the due amount by giving a notice in writing, but the accused failed to pay the amount. Hence, he filed the above complaint in the trial Court. During trial, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P4. The incriminating circumstances brought out in evidence were denied by him while questioning him. He did not adduce any Crl.R.P. No.612/2004 3 defence evidence. The trial Court, after analysing the evidence, convicted the accused, which was upheld by the Appellate Court. 3. The learned counsel for the revision petitioner submitted that the sentence imposed by the trial Court is too harsh. Such illegality can be rectified by invoking the revisional jurisdiction. After filing this revision petition, the 2[nd] respondent/complainant died and the revision petitioner is ready to pay the compensation amount to the legal heirs of the 2[nd] respondent. The learned Public Prosecutor has no objection with regard to the above submission. 4. The specific case of the complainant was that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason funds insufficient. Ext.P2 is the dishonour memos. Crl.R.P. No.612/2004 4 He issued a lawyer notice to the accused. Ext.P3 is the copy of the lawyer notice. Ext.P4 is the postal acknowledgment. A perusal of Exts.P1 and P2 shows that when Ext.P1 was presented for encashment, there was no sufficient fund to honour the cheque. Therefore, the trial Court observed that the cheque was dishonoured for the reasons stated u/s.138 of the N. I.Act and presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the cheque. 5. Section 139 of the N.I. Act says about certain presumptions, which reads as follows: “139. Presumption in favour of the holder - 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 for the discharge, in whole or in part, of any debt or other liability”. The revision petitioner admitted his signature in Ext.P1. There is no dispute with regard to that aspect. When Crl.R.P. No.612/2004 5 cheque is dishonoured for the reasons stated u/s.138 of the N.I. Act, a presumption u/s.139 of the N.I. Act can be drawn in this case. It is the responsibility of the revision petitioner to rebut the presumption by adducing evidence. Such rebuttal evidence is not found in this case. The principle drawing presumptions has been explained by the Apex Court in **Beena** v. **Muniappan** (AIR 2001 SC 2995). The trial Court and the appellate Court observed that no rebuttal evidence is available in this case and therefore, convicted the revision petitioner. I do not find any illegality in the above order. Therefore, the conviction u/s.138 of the N.I. Act is only to be confirmed. 6. The trial Court sentenced the revision petitioner to undergo simple imprisonment for three months and to pay compensation of 38,500/-. On a perusal of the above₹ judgment, I am of the opinion that imprisonment for three Crl.R.P. No.612/2004 6 months imposed by the trial Court is too harsh. Therefore, it needs to be modified. In the circumstances, the revision petitioner is sentenced as follows: a) He is sentenced to imprisonment till rising of the Court u/s.138 of the N.I. Act and to pay compensation of ₹37,500/-, u/s.357 (3) Cr.P.C. in default of payment of compensation, simple imprisonment for three months. b) If the cheque amounts is deposited, it shall be disbursed to the legal heirs of the 2[nd] respondent. c) The revision petitioner is directed to surrender in the Chief Judicial Magistrate, Kasaragod Court forthwith, failing which the learned Magistrate shall issue Non Bailable Warrant against the revision petitioner. ## **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.612/2004 7 Crl.R.P. No.612/2004 8