P.A. Mohanan v. T.S. Nanu and The State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 ``` ## `CRL.REV.PET NO. 150 OF 2011` ``` AGAINST THE JUDGMENT IN CRL.APPEAL NO.166 OF 2009 ON THE FILE OF THE ADDL.DISTRICT AND SESSION JUDGE, (FAST TRACT COURT-I), THRISSUR DATED ``` ``` 22.11.2010 ``` ``` AGAINST THE JUDGMENT IN ST 3394/2004 OF JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS -II, THRISSUR DATED 18.02.2009 ``` ## `REVISION PETITIONER/APPELLANT/ACCUSED:` ``` 1P.A.MOHANAN S/O. ANDI AGED 61 YEARS PATHUPARAYIL HOUSE, POLT 505/02, SECTION-6B,, GANDHI NAGAR, STATE OF GUJARAT. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI PARIYARATH ``` ## `RESPONDENTS / RESPONDENTS/APPELLANT/ACCUSED:` ``` 1T.S.NANU S/O. SANKARAN THUMBAYIL HOUSE, PALLISSERY VILLAGE-DESOM, THRISSUR DISTRICT. 2THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SR PP SMT PUSHPALATHA M K SRI.P.M.RAFIQ SRI.V.C.SARATH SRI.P.VIJAYA BHANU SR. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No.150 of 2011 ``` ``` 2 ``` ## C. S. DIAS, J. `-------------------------` Crl.R.P. No.150 of 2011 `-------------------------` Dated this the 13[th] day of September, 2023 ## ORDE `R` The revision petition is filed challenging the concurrent findings of conviction and sentence imposed by the Court of the Judicial First Class Magistrate-II, Thrissur (Trial Court) by its judgment in S.T. No.3394/2004, which was confirmed by the Court of the Additional Sessions Judge (Fast Track Court-I), Thrissur (Appellate Court) by its judgment in Criminal Appeal No.166/2009, holding the revision petitioner guilty for committing the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, ‘N.I. Act’). The revision petitioner was the accused and the first respondent was the ``` Crl.R.P. No.150 of 2011 ``` ``` 3 ``` ## complainant before the Trial Court. 2. The antecedent facts relevant for the determination of the revision petition are as follows: (i) The revision petitioner’s son is doing jewellery business in Gujarat. The revision petitioner, his son and his employees used to purchase gold ornaments from the first respondent. Towards the payment of the value of gold ornaments, the revision petitioner had issued Ext.P1 cheque dated 20.02.2004 for an amount of Rs.3/- lakh. On presentation of the cheque for collection, the same got dishonoured by Ext.P2 memo due to ‘insufficiency of funds’ in the account. Although Ext.P4 lawyer notice was issued to the revision petitioner, he refused to pay the demanded amount. Instead, he issued Ext.P7 reply notice alleging that only an amount of Rs.1,05,000/- was due from him to the first ``` Crl.R.P. No.150 of 2011 ``` ``` 4 ``` respondent. Hence, he committed the offence. (ii) The complaint filed by the first respondent was taken cognizance of by the learned Magistrate and summons was issued to the revision petitioner. After completing the statutory formalities contemplated under the Code of Criminal Procedure (in short, ‘Cr.P.C.’), the complaint was listed for trial. The first respondent was examined as PW1 and Exts.P1 to P7 were marked in evidence. The revision petitioner was examined as DW1 and Exts.D1 to D3 were marked. The statement of the revision petitioner was recorded under Section 313 of the Cr.P.C. (iii) The Trial Court, after analysing the evidence and materials on record, found the revision petitioner guilty and convicted him for the offence under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment ``` Crl.R.P. No.150 of 2011 ``` ``` 5 ``` for a period of three months and to pay a compensation of Rs.3/- lakh under Section 357(3) of the Cr.P.C., which if realised, to be paid to the first respondent. In default of payment of the compensation amount, the revision petitioner to undergo simple imprisonment for a further period of three months. (iv) Aggrieved by the judgment of the Trial Court, the revision petitioner filed Crl.A.No.166/2009 before the Appellate Court. The Appellate Court, after re-appreciating the evidence and materials on record, by the impugned judgment confirmed the conviction and sentence passed by the Trial Court. It is these judgments rendered by the courts below, that are assailed in the revision petition. 3. Heard; Sri. G.Sreekumar (Chelur), the learned counsel appearing for the revision petitioner, Sri. P.M. Rafeeq, the learned counsel ``` Crl.R.P. No.150 of 2011 ``` ``` 6 ``` appearing for the first respondent and Smt.Pushpalatha M.K., the learned Public Prosecutor appearing for the second respondent. 4. Sri. G.Sreekumar (Chelur) vehemently argued that the courts below have miserably failed to appreciate the oral testimonies of PWs 1 & 2 and Exts.D1 to D3 in their proper perspective. The cardinal defence of the revision petitioner was that the first respondent’s son-inlaw had caused to issue Ext.D2 notice dated 11.05.2004, wherein the allegation regarding the issuance of the cheque was not mentioned. Subsequently, on 06.08.2004, the first respondent caused to issue Ext.P4 lawyer notice alleging that Ext.P1 cheque issued by the revision petitioner got dishonoured. The inconsistent stand taken by the first respondent and his son-in-law in Exts.P4 and D2 is more than sufficient to discard the complaint. The courts below have failed to take ``` Crl.R.P. No.150 of 2011 ``` ``` 7 ``` note that the revision petitioner had specifically stated in Ext.P7 reply that the revision petitioner’s son was only liable to pay one-half of the liability i.e., Rs.1,50,000/-, out of which Rs.45,000/- was already credited to the account of the first respondent’s son-in-law as evidenced by Ext.D3 ledger extract. Therefore, the revision petitioner’s liability is only Rs.1,05,000/- and not Rs.3,00,000/-. This crucial aspect was not considered by the courts below, which renders the entire prosecution case worthless. Therefore, this Court may allow the revision petition and set aside the impugned judgments. 5. The learned counsel appearing for the first respondent supported the impugned judgments. He contended that, it was on the date of execution of Ext.D1 retirement deed, whereby the revision petitioner’s son was exonerated of all his liability, that Ext.P1 cheque was issued. ``` Crl.R.P. No.150 of 2011 ``` ``` 8 ``` There is not even a whisper in Ext.D1 deed that the liability between the revision petitioner’s son and the first respondent’s son-in-law had to be equally divided. Likewise, both the revision petitioner and the first respondent were witnesses to Ext.D1 deed and it was on the same day that the revision petitioner had issued Ext.P1 cheque for an amount of Rs.3,00,000/- which completely justifies and probabilises the case of the first respondent. The defence set up by the revision petitioner in Ext.P7 reply notice and his oral testimony is without any material, and has been set up only to wriggle out of the liability to pay the amount due as per Ext.P1 cheque. The courts below have rightly appreciated the evidence and arrived at the conclusion, which may not be interfered by this Court invoking its revisional power. The revision petition is meritless and may be dismissed. ``` Crl.R.P. No.150 of 2011 ``` ``` 9 ``` 6. The point is whether there is any illegality, impropriety or irregularity in the impugned judgments passed by the courts below. 7. The power of revision of this Court under Sections 397 to 401 of the Cr.P.C. is well settled in a catena of precedents. It is trite that the jurisdiction of this Court under the above provisions is supervisory in nature and is to be exercised only to correct patent illegality and miscarriage of justice. The said power cannot be equated with the power of an Appellate Court. Even though this Court can arrive at a different view, on the appreciation of the records, the same is not the scope and purport of the revisional jurisdiction of this Court. 8. In Ramroa Chavan v. Sanjaysinh Dattatray Gulabrao Phalke & Ors. [(2015) 3 SCC 123] , the Hon'ble Supreme Court has succinctly laid down the revisional powers of this Court. It ``` Crl.R.P. No.150 of 2011 ``` ``` 10 ``` ## is apposite to extract the said paragraph. “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 9. Therefore, unless there is a patent illegality, fundamental violation of principles of law or total miscarriage of justice this Court is not bound to exercise its revisional power. 10. Keeping in mind the above principles, I ``` Crl.R.P. No.150 of 2011 ``` ``` 11 ``` ## examine the revision petition. 11. The pivotal contention raised by the revision petitioner is that, he is only liable to pay an amount of Rs.1,05,000/- in discharge of Ext.P1 cheque. 12. Even though the revision petitioner admits the execution and issuance of Ext.P1 cheque, it is his defence that there was an understanding between his son and the first respondent’s son-in-law that their liability would be equally divided. In addition to the above, as per Ext.D3 ledger extract, an amount of Rs.45,000/was paid to the first respondent’s son-in-law in discharge of the revision petitioner’s son’s liability. Thus, as on the date of issuance of Ext.P4 lawyer notice, only an amount of Rs.1,05,000/was payable by the revision petitioner towards the liability of Rs.3,00,000/- as per Ext.P1 cheque. 13. Indisputably, Ext.D1 retirement deed ``` Crl.R.P. No.150 of 2011 ``` ``` 12 ``` was executed on 20.02.2004 between the revision petitioner’s son and the first respondent’s son-inlaw, whereby the partnership firm was dissolved and the revision petitioner’s son was totally exonerated of his liability. 14. Admittedly, it was on the same day that the revision petitioner issued Ext.P1 cheque in favour of the first respondent for an amount of Rs.3,00,000/-. There is absolutely no whisper in Ext.D1 deed, that the liability between the partners would be equally divided. Furthermore, the revision petitioner and the first respondent were witnesses to the said deed. The above sequence of events probabilises the version of the first respondent that the revision petitioner issued Ext.P1 cheque in discharge of Rs.3,00,000/-. There is also no scrap of paper to substantiate the defence of the revision petitioner. ``` Crl.R.P. No.150 of 2011 ``` ``` 13 ``` 15. It is also to be remembered that the revision petitioner is a retired Gazetted Officer from Gujarat Government service, who is fully conscious of the consequence of issuing a cheque. It is after being aware of the implications of issuing a cheque, that the revision petitioner executed and issued Ext.P1 cheque. 16. The courts below, after analysing the evidence and materials on record, have concurrently found the version of the first respondent to be probable, particularly because the revision petitioner has not discharged the onus of proof under Section 139 of the N.I. Act. 17. Negotiable Instruments, including a cheque, carries a presumption of consideration in terms of Sections 118(a) and 139 of the N.I. Act. It is profitable to extract the above provisions. 118. Presumptions as to negotiable instruments.Until the contrary is proved, the following presumptions shall be made: ``` Crl.R.P. No.150 of 2011 ``` ``` 14 ``` (a) of consideration.-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date.-that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance.-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer.-that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements.-that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp.-that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course.-that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 139. Presumption in favour of 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.” ``` Crl.R.P. No.150 of 2011 ``` ``` 15 ``` 18. The Honourable Supreme Court in Kumar Exports v. Sharma Carpets [2009 (1) KLT 197 (SC)] , has emphatically interpreted Sections 118 and 139. It is apposite to extract the ratio laid down in the aforesaid decision, which reads as follows:- 9. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. ``` Crl.R.P. No.150 of 2011 ``` ``` 16 ``` 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. 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 138a for the discharge, in whole or in part, of any debt or other liability. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable). The term `presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof". Section 4 of the Evidence Act inter-alia defines the words `may presume' and `shall presume as follows: - "(a) `may presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either ``` Crl.R.P. No.150 of 2011 ``` ``` 17 ``` regard such fact as proved, unless and until it is disproved or may call for proof of it. (b) `shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved." In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. 10.Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or 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. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on ``` Crl.R.P. No.150 of 2011 ``` ``` 18 ``` the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that ``` Crl.R.P. No.150 of 2011 ``` ``` 19 ``` there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the ``` Crl.R.P. No.150 of 2011 ``` ``` 20 ``` complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.” 19. In Kalamani Tex. & anr. v. P. Balasubramanian [2021 (2) KHC 517] , a Three Bench Judge of the Honorable Supreme Court has held as follows:- “14. Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of N.I. Act. The Statute mandates that once the signature(s) of an accused on the cheque/ negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243 : (2019) 18 SCC 106 : 2019 (1) KLD 581 : 2019 (2) KLJ 350 : AIR2019 SC 1876 : 2019 CriLJ ``` Crl.R.P. No.150 of 2011 ``` ``` 21 ``` 2400), P.18 in the following words: "In the case at hand, even after purportedly drawing the presumption under S.139 of the N.I. Act, the trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant – accused…" 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227), P.36., where this Court held that: "Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the ``` Crl.R.P. No.150 of 2011 ``` ``` 22 ``` cheque was not issued in discharge of a debt." ## 20. Similarly, in Shree Daneshwari Traders Vs. Sanjay Jain & Anr. [(2019) 16 SCC 83] , the Honourable Supreme Court has declared the law in the following terms. “16.The trial court in its judgment referred to the three cheques and observed that the three cheques bearing Nos. 2463, dated 18-8-2003; 2480 dated 25-82003 and 2497 dated 8-8-2003 go to suggest that the later cheque bearing No. 2497 was given much more earlier to 18-8-2003 or 25-8-2003 which seems inconsistent and it would not have been in the normal course of business. The trial court held that the date of issuance of the three cheques suggests that the cheques were already with the complainant and they were utilised by the complainant thereafter. On this aspect, PW 1 was cross-examined as to why cheque bearing No. 2497 was issued on 8-8-2003 while it ought to have been issued after 25-8-2003 to which PW 1 stated that he does not know about the same. After referring to the above three cheques, the trial court held that in view of inconsistency, the presumption available under Section 139 of the Negotiable Instruments Act is not available to the complainant which was affirmed by the High Court. It was further held that the blank cheques left by the accused were with the complainant and they have been used to file the complaint. The courts below did not keep in view ``` Crl.R.P. No.150 of 2011 ``` ``` 23 ``` that the appellant has no control over the manner of issuance of cheques by the respondent and how it was issued. Merely because, later Cheque No. 2497 was said to have been issued by the respondent at an earlier date i.e. 8-8-2003, it cannot be held that the complainant had used the blank cheques issued by the respondent. 17.Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt.” 21. Recently, in Sumeti Vij v. M/s. Paramount Tech Fab Industries [2021 (2) KHC 658] , the Honourable Supreme Court has examined the scope and purpose of Section 138 and 139 of the N.I. Act by holding thus:- 17. Likewise, under S.139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the ``` Crl.R.P. No.150 of 2011 ``` ``` 24 ``` discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. In Rohitbhai Jivanlal Patel v. State of Gujarat and Another (2019 (2) KHC 243 : (2019) 18 SCC 106 : 2019 (1) KLD 581 : 2019 (2) KLJ 350 : AIR 2019 SC 1876 : 2019 CriLJ 2400), this Court has examined the scope of S.138 and S.139 of the Act, which reads as under: "15. So far the question of existence of basic ingredients for drawing of presumption under S.118 and S.139 of the N.I. Act is concerned, apparent it is that the appellant - accused could not deny his signatures on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs 3 lakhs each. The said cheques were presented to the bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of S.138 as also of S.118 and S.139 are apparent on the face of the record. The Trial Court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant - accused to establish a probable defence so as to rebut such a presumption. xxxx xxxx xxxx 17. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non -existence was so ``` Crl.R.P. No.150 of 2011 ``` ``` 25 ``` probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under S.118 and S.139 of the N.I. Act. This Court stated the principles in Kumar Exports [Kumar Exports v. Sharma Carpets, (2009) 2SCC 513] "20. The accused in a trial under S.138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non - existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non - existence was so probable that a prudent ``` Crl.R.P. No.150 of 2011 ``` ``` 26 ``` man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in S.114 of the Evidence Act to rebut the presumptions arising under S.118 and S.139 of the Act. 21. The accused has also an option to prove the non - existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, therefore, the presumptions under S.118 and S.139 of the Act will not again come to the complainant's rescue." It was further considered by this Court in Uttam Ram v. Devinder Singh Hudan and Another (2019 (5) KHC 179 : (2019) 10 SCC 287 : 2019 (2) KLD 640 : 2019 (4) KLT SN 43 : 2019 (4) KLJ 750). 22. On an overall consideration of the records, the impugned judgments passed by the courts below and the exposition of law in the ``` Crl.R.P. No.150 of 2011 ``` ``` 27 ``` afore-cited decisions, I do not find any illegality, impropriety or irregularity in the impugned judgments passed by the courts below, holding the revision petitioner guilty for committing an offence under Section 138 of the N.I. Act. Accordingly, I confirm the concurrent findings of conviction imposed on the revision petitioner. 23. Now, coming to the question of sentence. 24. The Trial Court had sentenced the revision petitioner to undergo simple imprisonment for a period of three months and to pay a compensation of Rs. 3,00,000/- to the first respondent and in default to undergo simple imprisonment for a further period of three months. The said sentence was confirmed by the Appellate Court. 25. It is well settled in a plethora of judgments by the Hon’ble Supreme Court that ``` Crl.R.P. No.150 of 2011 ``` ``` 28 ``` Section 138 of the N.I. Act is more of civil in nature and that is why the Parliament has permitted the accused to pay off the liability within a stipulated time period. Also, it would be futile to incarcerate the accused for a longer duration, as it would serve no purpose. Instead, the accused can be directed to pay the cheque amount to the complainant as compensation and in default to undergo imprisonment for a period to be fixed by the Court. 26. Bearing in mind the above principles, I am of the view that the substantive sentence imposed by the Trial Court and confirmed by the Appellate Court can be modified, by permitting the revision petitioner to undergo imprisonment for a day, till the rising of the court and to pay a fine of Rs.3,00,000/- (Rupees Three lakh only) and in default to undergo simple imprisonment for a period of six months, which would do complete ``` Crl.R.P. No.150 of 2011 ``` ``` 29 ``` justice to both sides. 27. At the said point of time, the learned counsel appearing for the revision petitioner prayed that the revision petitioner may be granted some time to pay the fine amount. 28. In the result, - (I) the revision petition is allowed in part; (ii) the conviction imposed by the Trial Court and confirmed by the Appellate Court stands modified; (iii) the sentence imposed by the courts below stands modified as under:- (a) The revision petitioner/accused shall undergo simple imprisonment for a day, till the rising of the court for an offence under Section 138 of the N.I. Act and to a fine of pay Rs.3,00,000/- (Rupees Three lakh only), and in default of payment of fine, the revision petitioner shall undergo default imprisonment for a period ``` Crl.R.P. No.150 of 2011 ``` ``` 30 ``` of six months. The fine amount if realised, shall be paid to the first respondent/complainant as compensation under Section 357(1)(b) of the Cr.P.C. (b) Considering the request of the revision petitioner, two months time is granted to the revision petitioner to deposit the fine amount. The revision petitioner is directed to appear before the Trial Court on or before 13.11.2023 to undergo the modified sentence and to pay the fine amount. (c) In case of failure of the revision petitioner to appear before the Trial Court to undergo the sentence of imprisonment and pay the fine amount, the Trial Court is directed to execute the sentence without fail and in accordance with law. (d) The execution of the sentence shall stand deferred till 13.11.2023. ``` Crl.R.P. No.150 of 2011 ``` ``` 31 ``` (d) The Registry is directed to forward a of this order to the trial court for copy compliance. Sd/C. S. DIAS JUDGE SKP/13-09