Nabeesa v. Ameenabi and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942** ## **Crl.Rev.Pet.No.607 OF 2004(A)** **CRA 134/2001 OF SESSIONS COURT, KASARAGOD** **CC 155/1999 OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD** ## **REVISION PETITIONER/S:** **NABEESA, AGED 50 YEARS, W/O MOIDEENABBA, NEAR PARAKATTA, ALLA GATE, UPPALA.P.O., KASARAGOD DISTRICT.** ## **BY ADV. SRI.N.J.JOHNSON** ## **RESPONDENT/S:** **1 AMEENABI, W/O SHEIK MOIDEEN, RESIDING AT AMBAR, P.O.MANGALPADY, KASARAGOD, REP. BY AYSHABI, W/O.ABDULRAHIMAN, AMBAR MANGALPADY, ATTORNEY HOLDER OF AMEENABI, KASARAGOD DISTRICT.** **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR R1 BY ADV. SMT.R.PADMAKUMARI** ## **OTHER PRESENT:** **SR.PP.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** ## **ORDER** Dated this the 12[th] day of October, 2020 This revision petition is directed against the judgment dated 26.11.2003 rendered by the Sessions Court, Kasaragod in Crl. Appeal No.134 of 2001, whereby the learned Sessions Judge confirmed the conviction and sentence imposed by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “NI Act”). By its judgment dated 26.05.2001, the learned chief Judicial Magistrate, Kasaragod convicted and sentenced the accused for the offence under Section 138 of the NI Act to undergo simple imprisonment for a period of 11 months. In appeal, the sentence was modified, directing the accused to undergo simple imprisonment for six months Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** and to pay a compensation of Rs.2,50,000/- to the complainant and in default of payment of fine to undergo simple imprisonment for a period five months more. Feeling aggrieved, the accused is before this Court in revision. 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”) issued Ext.P2 cheque for Rs.2,50,000/- to the complainant towards discharge of a debt arising out of a loan transaction availed from her. The cheque was, on presentation, dishonoured due to insufficiency of funds in the account of the accused. Notice issued intimating dishonour and demanding the sum covered by the instrument was acknowledged by the accused, but not responded with reply of payment. Hence, the complaint was filed under Section Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** 138 of the NI Act before the trial court. 3. 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 CC No.155 of 1999 of the Chief Judicial Magistrate Court, Kasaragod. 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, the Power of Attorney of the complainant was examined as PW1 and marked Exts.P1 to P5. After the witness for the complainant had been examined and before the accused was called on for her defence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure for the Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** purpose of enabling her to explain the incriminating circumstances appearing in the evidence against her. 5. On appreciation of evidence, the learned magistrate held that the execution of Ext.P2 cheque was proved and the cheque was dishnoured on account of the reason, “insufficient funds” in the account of the accused. The learned magistrate concluded that the cheque was issued by the accused for the discharge of a legally enforceable debt. 6. Heard Sri.K.V.Sreeraj, the learned Amicus Curie appointed by this Court for the revision petitioner/accused; the learned counsel for the 1[st] respondent/complainant; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent State. 7. In order to determine the question whether the offence punishable under Section 138 of the Act is made out against the accused, it is Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** 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 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 Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** 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 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 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 Act are very much available to Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** 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 proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. 8. It is well settled law that in a revision against conviction and sentence rendered Crl.Rev.Pet.No.607 OF 2004 **==> picture [31 x 8] intentionally omitted <==** concurrently by the trial court as well as the appellate court, the High Court does not, in the absence of perversity, upset factual findings arrived at by the appellate court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the appellate court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the appellate court correctly applied the presumption under 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. 9. The learned Amicus Curie appointed by this Court to argue for the revision petitioner submitted that PW1 is only a Power of Attorney holder of the complainant and she was not Crl.Rev.Pet.No.607 OF 2004 **==> picture [37 x 8] intentionally omitted <==** aware of the real transaction between the parties. Hence, it is contended that the transaction was not proved beyond doubt. 10. On a perusal of the complaint, it is seen that the complainant is an old lady, which necessitated the appointment of her daughter as the Power of Attorney holder. On going through the oral evidence of PW1, it is clear that she was present at the time of the transaction and also when Ext.P2 cheque was issued. The accused is a close neighbour of the complainant and the compensation received by the complainant on the death of her son in an accident while he was employed in gulf country was advanced as a loan to the accused on her request to meet the expenses in connection with the marriage of her daughter. It is brought out from the evidence of PW1 that PW1 was acquainted with the accused earlier and PW1 was aware of the entire Crl.Rev.Pet.No.607 OF 2004 **==> picture [37 x 8] intentionally omitted <==** transaction between the parties. Hence, under no circumstances, can it be said that PW1 was not aware of the transaction between the parties. Thus, the attack on the evidence of the Power of Attorney holder is devoid of any merit. 11. On a perusal of the entire evidence, it is disclosed that Ext.P2 cheque was issued to the complainant. The cheque was presented in time. Notice was issued calling upon the accused to pay the amount covered under the cheque within 15 days from the date of receipt of the notice in accordance with law. The amount was not paid as demanded. Hence, all the legal formalities under Section 138 of the NI Act have been complied with. 12. 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 Crl.Rev.Pet.No.607 OF 2004 **==> picture [37 x 8] intentionally omitted <==** 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:- “ _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 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 Crl.Rev.Pet.No.607 OF 2004 **==> picture [37 x 8] intentionally omitted <==** accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. In view of the above, this Court is of the view that the trial court and the appellate court rightly entered a finding that Ext.P2 cheque was issued for a legally enforceable debt. Accordingly, the case of the complainant has been proved beyond reasonable doubt. 14. Coming to the question of sentence, the learned Amicus Curie pointed out that the accused is a lady aged about 66 years. Hence, the sentence is sought to be modified. The offence punishable under Section 138 of the NI Act is punishable with imprisonment or with fine or with both. Considering the fact that the accused is a lady aged 66 years, it is not necessary to impose compulsory imprisonment on her. Hence, the sentence imposed is liable to be modified. Accordingly, the sentence imposed Crl.Rev.Pet.No.607 OF 2004 **==> picture [37 x 8] intentionally omitted <==** by the trial court as confirmed by the appellate court stand modified as follows; i. The revision petitioner/accused is sentenced to pay a fine of Rs.2,50,000/- (Rupees two lakhs and fifty thousand only) and in default of payment of fine to undergo simple imprisonment for six months. ii. In view of the Covid-19 pandemic and the resultant financial crunch, the revision petitioner/accused is given six months time to deposit the amount before the trial court. Thus, the fine amount shall be deposited in the trial court within six months time from this date, failing which the accused shall undergo simple imprisonment for six months. iii. In case, the fine amount is deposited as ordered hereinabove, the same shall be released to the 1[st] respondent/complainant as compensation under Section 357(3) of the Crl.Rev.Pet.No.607 OF 2004 ..15.. Code of Criminal Procedure. Registry shall send back the records to the trial court for execution of sentence in accordance with law. The revision petition is allowed in part accordingly. **Sd/-** **N.ANIL KUMAR** **JUDGE** Bka/12.10.2020