High Court of KeralaSingle Judge2015-09-29Conviction under NI Act upheld; sentence reduce...

N. Moidu v. State of Kerala and Amoo Haji

Case / Petition Number:Crl.Rev.Pet.No.611 of 2004

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan, J.
Judgment Date: 2015-09-29
Court Decision / Holding: The High Court upholds the conviction under section 138 NI Act but modifies the sentence: imprisonment till rising of the Court and compensation of Rs.27,500 under Cr.P.C. 357(3), with default imprisonment for three months. The accused must surrender to the Chief Judicial Magistrate, Kasaragod. If the cheque amount is deposited, it shall be disbursed to the legal heirs of the 2nd respondent. Non-bailable warrants may be issued if he fails to comply.
Final Disposition: Conviction under NI Act upheld; sentence reduced to imprisonment till rising of the Court and compensation Rs.27,500 with default imprisonment for three months; accused to surrender; compensation to be paid to heirs if applicable; NBW may issue if not surrendered.

Parties to the Case

Appellants / Petitioners

N. Moidu, S/o. Abdul Khader @ Khadercha, Nellikkatta, P.O. Nekraje, Kasaragod

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Amoo Haji, S/o. Late Hassankutty, Padinjarekara House, Udma Village, Kasaragod Taluk

Legal Representation & Advocates

Counsels for Petitioners

• Sri I.V. Pramod (Adv)

Counsels for Respondents

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

Case Synopsis & Summary

N. Moidu, the revision petitioner, challenges a conviction under section 138 of the Negotiable Instruments Act (NI Act) for issuing a cheque in discharge of a debt. The complainant alleged that on 27 February 1998 Moidu borrowed Rs. 27,500 and issued Ext. P1 cheque, later dishonoured for want of funds as evidenced by Exts. P2 and P3. A notice was sent (Ext. P4 with Ext. P5), and the complaint proceeded to trial. The trial Court convicted Moidu under s.138 NI Act and sentenced him to three months’ simple imprisonment and to pay Rs.28,500 under Cr.P.C. 357(3). The Appellate Court upheld the conviction. Moidu contends the sentence is harsh and seeks relief through revisional jurisdiction, offering to deposit compensation with the legal heirs of the deceased complainant. The learned Public Prosecutor does not object to Moidu’s offer to pay compensation. The High Court reiterates the presumption in favour of the holder upon dishonour of a cheque under s.139 NI Act and the burden on the accused to rebut the presumption, a point supported by Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001 SC 3879). The Court finds no illegality in the conviction but reduces the sentence: imprisonment until rising of the Court and compensation of Rs.27,500, with default imprisonment for three months. Moidu is ordered to surrender; non-bailable warrants may issue if he fails to comply. The complainant’s death during proceedings is acknowledged, and the amount deposit is to be paid to the legal heirs of the 2nd respondent.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Presumption in favour of the holder under NI Act s.139 (when a cheque is dishonoured)
Burden on accused to rebut the presumption (as clarified by Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3879)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the sentence imposed by the trial Court is harsh. He seeks exercise of revisional jurisdiction to rectify the illegality by reducing the punishment and by permitting payment of compensation to the legal heirs of the deceased complainant. He is ready to deposit Rs.27,500 as compensation and urges that, if the cheque amount is deposited, it should be disbursed to the legal heirs. He emphasizes lack of any additional defence and requests reconsideration of the sentence only.

Contentions of Respondents

The respondents rely on the established chain of events—issuance, dishonour, demand, and non-payment—and support the conviction under s.138 NI Act. They contend the evidence supports presumption under s.139 NI Act and that the remedy should be to maintain the conviction; the provision directs payment of compensation under Cr.P.C. 357(3). They urge that the penalty should reflect the gravity of the offence and that the conviction should stand unless legal illegality is shown.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Hiten P. Dalal v. Bratindranath Banerjee	AIR 2001 SC 3879	Positive	Cited to support the principle that presumptions under s.139 NI Act arise on dishonour of a cheque and that the accused bears the burden to rebut them.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against N. Moidu v. State of Kerala and Amoo Haji and instantly map out authorities that support, challenge, or govern your position.

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. 611 of 2004 ( )** **-------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.184/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 02-01-2004** **AGAINST THE JUDGMENT IN CC 244/1998 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.611 of 2004 ---------------------------------------------Dated this the 29[th] day of September, 2015 ## **ORDER** The revision petitioner, who is the appellant in Crl. Appeal No.184/2000 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.244/1998 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 ₹ 28,500/- u/s.357(3) Cr.P.C. Against that, the accused/revision petitioner preferred the above appeal, Crl.R.P.No.611/2004 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 is that on 27.2.1998 the accused borrowed a sum of 27,500/- 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. The complainant 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. 3. During trial, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P5. The incriminating circumstances brought out in evidence were denied by him while questioning him. He did not adduce any Crl.R.P.No.611/2004 3 defence evidence. The trial Court, after analysing the evidence, convicted the accused, which was upheld by the Appellate Court. 4. 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. 5. 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 and Ext.P3 are the Crl.R.P.No.611/2004 4 dishonour memos. He issued a lawyer notice to the accused. Ext.P4 is the copy of the lawyer notice. Ext.P5 is the postal acknowledgment. A perusal of Exts.P1 to P3 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. 6. 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 the issuance of cheque. Crl.R.P.No.611/2004 5 When 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 the Court in **Hiten P. Dalal** v. explained by Apex **Bratindranath Banerjee** (AIR 2001 SC 3879]. 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 28,500/-. On a perusal of the above₹ Crl.R.P.No.611/2004 6 judgment, I am of the opinion that imprisonment for three months imposed by the trial Court is too harsh. Therefore, it needs to be modified. In the circumstances, the revision petitioner is sentenced to imprisonment till rising of the Court u/s.138 f the N.I. Act and to pay compensation of 27,500/-, u/s.357(3) Cr.P.C. in default of₹ payment of compensation, simple imprisonment for three months. If the cheque amounts is deposited, it shall be disbursed to the legal heirs of the 2[nd] respondent. 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.611/2004 7 Crl.R.P.No.611/2004 8