Rajani.C and P. Pradeep Kumar v. State of Kerala and Thomas Chacko

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-09-20
Court Decision / Holding: The revision petition stands dismissed. The amount, if any, deposited by the petitioners before the trial court shall be treated as part payment of the fine. The second respondent, the complainant, shall be at liberty to withdraw the deposited amount under Section 357(1)(b) Cr.P.C.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Rajani.C
P. Pradeep Kumar

Respondents

State of Kerala
Thomas Chacko

Legal Representation & Advocates

Counsels for Petitioners

• G. Sreekumar (Chelur)
• Nandagopal S. Kurup

Counsels for Respondents

• Public Prosecutor (State)
• Sri J. Abhilash

Case Synopsis & Summary

This criminal revision petition challenges a concurrent conviction under Section 138 of the Negotiable Instruments Act. On 4 September 2006, the petitioners allegedly borrowed Rs 1,00,000 and issued Ext. P1 as a discharge of the debt; the cheque was presented and dishonoured for insufficiency of funds. A statutory notice was served, but payment was not made. At trial, the complainant (PW1) testified, and Exts. P1 to P6(a) were marked; the petitioners produced DWs and Exts. D1–D4. The central dispute rested on whether Ext. P1 was drawn from a joint account of the petitioners. The petitioners argued that the account at the relevant time was not yet a joint account, although Ext. P1 bore both signatures and was handed over in PW1’s presence, and the account reportedly became joint only on 3 November 2006; hence they urged a doubt as to liability under Sec. 138 NI Act. The prosecution contended that Ext. P1 was signed by both petitioners, in PW1’s presence, and PW1 testified that the second petitioner wrote the particulars on Ext. P1; there is no contra evidence. The courts below rejected the doubt and held the petitioners liable under Sec. 138. The High Court affirmed, applying the presumption under Section 139 once the cheque and signature are admitted, following Vasanthakumar T. v. Vijayakumari (AIR 2015 SC 2240). The sentence was deemed lenient, and the revision petition was dismissed; any deposited amount may be treated as part payment and the complainant may withdraw it.

Provisions of Law Cited

Section 138, Negotiable Instruments ActSection 357(1)(b), Cr.P.C.

Legal Doctrines & Maxims

Presumption under Section 139 of the Negotiable Instruments Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Ext. P1 originated from a joint account, which at the relevant time was not in their joint names; although Ext. P1 bore both signatures and was handed over in PW1’s presence, the account became joint only on 3 November 2006. They urged that this inconsistency should entitle them to the benefit of doubt regarding liability under Section 138 NI Act. They pointed to PW1’s testimony that the second petitioner wrote the details on Ext. P1 before both signed, arguing lack of conclusive proof of joint-liability.

Contentions of Respondents

Prosecution argued that Ext. P1 was signed by both petitioners and drawn from an account maintained by both, with PW1 confirming the joint execution in his presence. The prosecution maintained that the evidence supported a finding that Ext. P1 was executed by both petitioners, and that once the cheque and signatures are admitted, the presumption under Section 139 applies; the lower courts correctly evaluated the evidence and rejected the doubt raised by the defense.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vasanthakumar T. v. Vijayakumari	AIR 2015 SC 2240	Positive	Apex Court held that if the cheque as well as the signature is admitted, the presumption under Section 139 NI Act operates; the Kerala High Court relied on this ruling to uphold the presumption.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938 Crl.Rev.Pet.No. 1533 of 2014 () -------------------------------ST 222/2007 of J.M.F.C.-II, VAIKOM CC 466/2010 of SESSIONS COURT - IV, KOTTAYAM REVISION PETITIONER/APPELLANTS/ACCUSED 1 & 2: ----------------------------------------------------------- 1. RAJANI.C - W/O.PRADEEP KUMAR, NISHA QUARTERS, MEENADATHOOR P.O., THIRUR, MALAPPURAM. 2. P.PRADEEP KUMAR - S/O.PARAMESHWARAN NAIR, NISHA QUARTERS, MEENADATHOOR P.O., THIRUR, MALAPPURAM. BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP RESPONDENT(S): ------------------------ 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THOMAS CHACKO - S/O.CHACKO, PATTASSERY HOUSE, THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM. R2 BY ADV. SRI.J.ABHILASH R1 BY PUBLIC PROSECUTOR, SRI C K PRASAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.1533 of 2014 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of September 2016 ## O R D E R The accused in S.T.No.222 of 2007 on the files of the Court of the Judicial Magistrate of First Class - II, Vaikom filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I Act'). 2. Heard. 3. The prosecution allegation is that on 4.9.2006, the revision petitioners borrowed an amount of Rs.1,00,000/- from the complainant and towards the Crl.R.P.1533/2014 : 2 : discharge of the said liability, the revision petitioners issued Ext.P1 cheque. The complainant presented Ext.P1 cheque for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioners. Statutory notice was issued on behalf of the complainant which was received by the revision petitioners. However, the revision petitioners did not pay the cheque amount within the statutory period or thereafter. 4. Before the trial court, the complainant himself got examined as PW1 and Exts.P1 to P6(a) were marked for the complainant. DW1 and DW2 were examined and Exts.D1 to D4 were marked for the revision petitioners. Crl.R.P.1533/2014 : 3 : 5. The learned counsel for the revision petitioners has submitted that even though it was contended that the cheque in question was issued from the joint account of the revision petitioners, the said account was not a joint account in the name of the revision petitioners at the relevant time and consequently, the revision petitioners are entitled to the benefit of doubt. It is not disputed that Ext.P1 cheque was signed by both the revision petitioners. It is also not disputed that the cheque was drawn from the account maintained by both the revision petitioners. It is true that the account became a joint account only from 3.11.2006. However, the cheque in question was handed over to the complainant with the signature of both the revision petitioners. Therefore, both the revision Crl.R.P.1533/2014 : 4 : petitioners are liable for the issuance of the cheque. PW1 specifically stated that the second revision petitioner had written everything in Ext.P1 cheque and thereafter, both the revision petitioners put their signature on Ext.P1 cheque in the presence of PW1. There is also no contra evidence to that part of the evidence of PW1. 6. The Apex Court in Vasanthakumar T. v. Vijayakumari (AIR 2015 SC 2240) held that if the cheque as well as the signature is accepted by the accused, the presumption under Section 139 would operate. 7. In this case, the signature is not disputed. The evidence of PW1 would clearly show that the cheque was executed by both the revision petitioners in the presence of PW1. Since there is no evidence to rebut the evidence of Crl.R.P.1533/2014 : 5 : PW1 that everything in Ext.P1 was written by the second revision petitioner in the presence of PW1, the only inference possible is that Ext.P1 was executed by the revision petitioners as stated by PW1. In view of the above reasons, the argument advanced by the learned counsel for the revision petitioners in this regard cannot hold good. 8. Even though the learned counsel for the revision petitioners has made a feeble attempt to argue that the complainant could not prove the source of income, the learned counsel himself has fairly conceded that no question challenging the capacity of PW1 was put to PW1 during his cross-examination. That apart, the evidence of PW1 would clearly show that he was doing Real Estate business and contract work. From the evidence of PW1, I Crl.R.P.1533/2014 : 6 : am satisfied that PW1 had sufficient source of income to lend the amount covered by Ext.P1 cheque. 9. The courts below correctly evaluated the oral and documentary evidence adduced by the complainant and concurrently found that the revision petitioners executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act., repelling the contentions of the revision petitioners. No circumstance has been brought to the notice of this court to indicate that the appreciation of evidence or the concurrent finding by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioners committed the offence under Section 138 of the N.I. Act does not warrant any interference by this Court. Crl.R.P.1533/2014 : 7 : 10. The courts below had taken a very lenient view in the matter of sentence. Therefore, the sentence awarded by the courts below also does not warrant any interference by this Court. In the result, this revision petition stands dismissed. Needless to state that the amount, if any, deposited by the revision petitioners in connection with this case before the trial court shall be treated as part payment of the fine. The second respondent, who is the complainant before the court below, shall be at liberty to withdraw the amount, if any, deposited by the revision petitioners before the trial Court under Section 357(1)(b) Cr.P.C. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/.22.9.2016_ _// True Copy //_ _PA to Judge_