P.M. KuriaKose v. State of Kerala and Bliss Foam Industrial Estate

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.D.RAJAN
Judgment Date: 2015-09-18
Court Decision / Holding: The revision petition is disposed of as above: conviction under Section 138 NI Act affirmed; however, sentence modified to imprisonment till rising of the Court and to pay ₹64,000 as compensation under Section 357(3) Cr.P.C., with default imprisonment for three months; the petitioner to appear within 30 days to receive the modified sentence; compensation to be disbursed to the 2nd respondent if realized.
Final Disposition: Revision petition disposed of; conviction upheld; sentence modified as described above.

Parties to the Case

Appellants / Petitioners

P.M. KuriaKose, Proprietor Foam Land, Kannomthumchal, South Bazaar, Kannore

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Bliss Foam Industrial Estate represented by Managing Partner Baby Mathew Vettoor

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sooraj Elanjickal

Counsels for Respondents

• Public Prosecutor, Sri. N. Suresh

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition by P.M. KuriaKose challenging a conviction under Section 138 of the Negotiable Instruments Act, arising from CC 662/1994 of the Judicial First Class Magistrate, Changanasserry, and the subsequent affirmation by the Additional Sessions Judge (Adhoc)-I, Kottayam on appeal in Crl.Appeal No.144/2002. The complainant alleged that the petitioner issued a cheque for ₹64,000 in discharge of a debt; the cheque was dishonoured for insufficient funds. Exts P1–P15 were produced by the complainant; Ext P2 was the cheque; PW2 (bank official) corroborated the financial transaction; Exts P3–P7 relate to dishonour and notices; Exts P9–P15 concern firm transactions. The petitioner tried to rebut the statutory presumption under Section 139 NI Act with oral and documentary evidence (DW1–DW4, Exts D1–D19). The trial and appellate courts held that the presumption had not been rebutted, sustaining the conviction. Beena v. Muniappan (AIR 2001 SC 2995) is cited to explain the presumption. The High Court, while upholding the finding of no illegality in the lower courts, modifies the sentence, ordering imprisonment till rising of the Court and payment of ₹64,000 compensation under Section 357(3) Cr.P.C., with default three months’ imprisonment, directing payment to the 2nd respondent.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 139 of the Negotiable Instruments ActSection 357(3) Cr.P.C.

Legal Doctrines & Maxims

Beena v. Muniappan (AIR 2001 SC 2995) – presumption in favour of holder under Section 139 NI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner relied on DW1–DW4 and Exts D1–D19 to rebut the presumption under Section 139 NI Act, arguing that the evidence was insufficient to infer that the cheque was issued in discharge of a debt. He urged leniency in sentencing, asserting factors warranting mitigation and requesting a lighter punishment in view of his circumstances.

Contentions of Respondents

The respondents argued that the presumption under Section 139 NI Act was not rebutted and that the lower courts rightly convicted the accused. They supported upholding the conviction and urged that the sentence, in its main form, be maintained, with any adjustments sought by the defense to be considered only within permissible limits.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Beena v. Muniappan	AIR 2001 SC 2995	Positive	Cited to explain presumption under Section 139 NI Act and the burden to rebut it.

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** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2015/27TH BHADRA, 1937** **Crl.Rev.Pet.No. 775 of 2006 ( )** **--------------------------------** **AGAINST THEJUDGMENT IN CRL.APPEAL NO.144/2002 of ADDL.SESSIONS COURT (ADHOC)-1, KOTTAYAM DATED 10.02.2005 AGAINST THE JUDGMENT IN CC 662/1994 of J.M.F.C.,CHANGANASSERRY DATED 5.1.2002** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **--------------------------------------------P.M.KURIAKOSE, PROPRIETOR FOAM LAND, KANNOMTHUMCHAL, SOUTH BAZAR, KANNORE.** **BY ADV. SRI.SOORAJ ELANJICKAL** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **--------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. BLISS FOAM INDUSTRIAL ESTATE, REPRESENTED BY MANAGING PARTNER BABY MATHEW VETTOOR.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-09-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.775 of 2006 ---------------------------------------------Dated this the 18[th] day of September, 2015 ## **ORDER** The revision petitioner, who is the appellant in Crl.Appeal No.144/2002 on the file of Additional Sessions Judge, (Adhoc)-I, Kottayam, challenges the 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.662/1994 of Judicial First Class Magistrate Court, Changanasserry for offence u/s.138 of the N.I. Act. He was convicted and sentenced to undergo rigorous imprisonment for three months u/s.138 of the N.I. Act and to pay compensation of 64,000/- u/s.357(3) Cr.P.C.₹ Against that, the accused/revision petitioner preferred the Crl.R.P. No.775/2006 2 above appeal, which was dismissed. Being aggrieved by that, he approached this Court with this revision petition. 2. The complainant's case in the trial Court was that the accused purchased goods from the complainant firm and in discharge of that debt, he issued a cheque for ₹64,000/- dated 18.3.1994 drawn on S.B.T., Puzhathi, Kannoorr branch. When the cheque was presented for encashment through S.B.T. Industrial Estate Branch, it was dishonoured for the reason of funds insufficient. The complainant gave a lawyer notice to the accused and even after receipt of that notice, there was no repayment. In the circumstances, he filed the above complaint in the Judicial First Class Magistrate Court, Changanasserry. The complainant is the second respondent in this revision petition. 3. In the trial Court, PW1, the Managing Partner of Crl.R.P. No.775/2006 3 the complainant firm was examined and his documents were marked as Exts.P1 to P15. PW2 and PW3 were also examined by the complainant. The accused denied the allegation and he examined DW1 to DW4 and produced Exts.D1 to D19. The trial Court, after analysing the evidence, convicted the revision petitioner, which was upheld by the appellate Court. 4. The specific case of the complainant was that Ext.P2 cheque was issued in discharge of a debt by the accused. PW2 is the Manager of the State Bank of Travancore, Puzhathi, Kannoor. Ext.P1 is the partnership deed. As a part payment, the revision petitioner issued Ext.P2 cheque for 64,000/-. When it was presented for₹ encashment, dishonoured for the reason of funds insufficient. Ext.P3 is the dishonour memo. Ext.P4 is the intimation. He sent a lawyer notice and Ext.P5 is the copy Crl.R.P. No.775/2006 4 of the lawyer notice. Ext.P6 is the postal receipt and Ext.P7 is the acknowledgment card. To prove the financial transaction of the firm, he produced Exts.P9 to P15 series. PW2 and PW3 supported the evidence of PW1. PW2 deposed that Ext.P2 was dishonoured for the reason of funds insufficient. Analysing the evidence of PW1 to PW3, it is found that the cheque was dishonoured for the reason of funds insufficient. 5. When cheque is dishonoured for the reason stated u/s.138 of the N.I. Act, a presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the cheque. The principle drawing presumptions has been explained by the Apex Court in **Beena** v. **Muniappan** (AIR 2001 SC 2995). Section 139 of the N.I. Act reads as follows: “ “139. Presumption in favour of the holder - It shall be presumed, unless the contrary is Crl.R.P. No.775/2006 5 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 adduced both oral and documentary evidence to rebut the presumption. He examined DW1 to DW4 and produced Exts.D1 to D19. The trial Court and the appellate Court were of the opinion that to rebut the presumption u/s.139 of the N.I. Act, the evidence of DW1 to DW4 and Exts.D1 to D19 are not sufficient and thus convicted the revision petitioner. The appellate Court also approved the conviction. I do not find any illegality or irregularity in the findings of the Court below. 6. The learned counsel appearing for the revision petitioner submitted that a leniency may be shown in sentence. In the circumstances, I modify the sentence as follows: The revision petitioner is sentenced to imprisonment Crl.R.P. No.775/2006 6 till rising of the Court and to pay a sum of 64,000/- as₹ compensation u/s.357(3) Cr.P.C., in default simple imprisonment for three months. The revision petitioner is directed to appear before trial court within 30 days from today, for receiving the modified sentence, failing which Judicial Magistrate of First Class, Changanasserry shall issue Non-bailable Warrant against the revision petitioner. If the compensation amount is realised, it shall be disbursed to the 2[nd] respondent. The revision petition is disposed of as above. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.775/2006 7 Crl.R.P. No.775/2006 8