Ravi N. v. Omana V.N. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 CRL.APPEAL NO. 1452 OF 2019** **AGAINST THE JUDGMENT DATED 29.10.2019 IN CRL.APPEAL NO.59 OF 2016 OF THE ADDITIONAL SESSIONS COURT-VIII, ERNAKULAM AGAINST THE JUDGMENT DATED 20.01.2016 IN ST 4444/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI (Crl.L.P. 372/2019 OF HIGH COURT OF KERALA)** **APPELLANT:** **RAVI.N AGED 70 YEARS, S/O. LATE NARAYANAN, VARNAM, 49/228F, PUNNAKKAL, ELAMAKKARA, ERNAKULAM DISTRICT.** **BY ADV C.A.NAVAS** ## **RESPONDENTS:** **1 OMANA V.N., W/O. DASAN CONFIDENTIAL ASSISTANT, COUNCIL SECTION, CORPORATION OF COCHIN - 682 017.** **2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY ADVS. R1 BY SHYLA SHAFEEQ A.A R1 BY P.M.NASEEMA R2 BY SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL** **HEARING ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1452 of 2019 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.Appeal No.1452 of 2019 ----------------------------------------------------------Dated this the 9[th] day of November, 2023** ## **JUDGMENT** This appeal is filed by the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The trial court convicted the accused, 1st respondent herein, and sentenced to undergo simple imprisonment for a term of three months and to pay a fine of Rs.1,50,000/-. In the appeal preferred by the 1st respondent, the appellate court set aside the conviction and sentence. The said judgment dated 29.10.2019 in Crl.Appeal No.59 of 2016 of the Additional Sessions Judge-VIII, Ernakulam is under challenge in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code). 2. The complaint was filed on the allegation that a cheque issued by the 1st respondent in discharge of a debt of Rs.1,50,000/-, when presented for encashment was 3 Crl.Appeal No.1452 of 2019 dishonoured for want of sufficient fund in the account of the 1st respondent and despite giving notice, she failed to make payment. The trial court, after recording the evidence of PW1 and receiving Exts.P1 to P6 in evidence, considered the matter in detail. The case of the 1st respondent was that she was innocent and the cheque was not issued in discharge of any legally enforceable debt. After appreciating the evidence, the trial court found that the oral evidence of PW1 sufficiently had proved that Ext.P1 cheque was duly executed and issued by the 1st respondent in order to make repayment of Rs.1,50,000/- borrowed by her. The trial court further found that all the statutory requirements for a prosecution under Section 138 of the N.I.Act are complied with. Accordingly, the trial court proceeded to convict and sentence the 1st respondent. 3. In the appellate court, the 1st respondent raised two-fold contentions to assail the findings of the trial court. It is contended that evidence of PW1 was insufficient to prove passing of consideration and also that lack of pleadings in the 4 Crl.Appeal No.1452 of 2019 notice as well as the complaint, would fail the prosecution. The appellate court, after considering the evidence somewhat in detail, confirmed the finding that execution of Ext.P1 cheque by the 1st respondent was duly proved. However, the court reversed the finding of the trial court. Concerning the sufficiency of pleadings, the learned counsel for the appellant placed reliance in **Divakaran v. State of Kerala [2016 (4) KLT 233]** . 4. Heard the learned counsel appearing for the appellant, the learned counsel for the 1st respondent and the learned Public Prosecutor. 5. PW1 is the complainant. He alone gave evidence before the trial court to prove execution of Ext.P1 cheque and also to establish that the said cheque was supported by consideration. In the chief examination, all such matters have been stated. During the cross-examination, he admitted that he did not know the place of residence of the 1st respondent, although he knew that presently she was residing at Kadavanthra. Although it was suggested to him that he had 5 Crl.Appeal No.1452 of 2019 no sufficient income to make such a payment and also that the cheque was not executed before him, he duly had denied such questions. 6. The learned counsel appearing for the 1st respondent highlights the shabby nature of evidence of PW1 as regards the personal details of the 1st respondent and also her place of residence in order to contend that the findings of the appellate court are correct and legal. In **Divakaran** (supra) this Court held that unless necessary details, such as, the nature of the transaction, when was the cheque executed, etc. are not stated in the notice and also in the complaint, that would be denial of opportunity to the accused. Only if all such details are furnished in the notice and averred in the complaint, the accused will be in a position to set up his defence and defend himself in the prosecution. It was relying on that proposition, the appellate court recorded the finding that the prosecution could not succeed. 7. Correctness of **Divakaran** (supra) was considered by a Division Bench of this Court in **Basheer K. v. C.K.** 6 Crl.Appeal No.1452 of 2019 **Usman Koya and another [2021 (2) KLT 567]** . The Division Bench, after considering the matter in detail, held that if the law in **Divakaran's** case is accepted, the provisions of Section 139 of the N.I.Act itself become otiose. Accordingly, the decision in **Divakaran** (supra) was held to be not good law. Therefore, the findings rendered by the appellate court based on the proposition laid down in **Divakaran's** case is unsustainable in law. 8. On the facts, both the courts below concurrently found that Ext.P1 cheque was duly executed by the 1st respondent and it was supported by sufficient consideration. Of course, the 1st respondent had a definite contention that the transaction alleged by the prosecution is not a genuine one and no amount is in fact due from her. Of course, the presumption available under Section 139 of the N.I.Act is a rebuttable one and the accused can certainly, with the help of reliable evidence, rebut that presumption. In that regard, the learned counsel appearing for the 1st respondent would place reliance on **Krishna Janardhan Bhat v. Dattatraya** 7 Crl.Appeal No.1452 of 2019 **G.Hegde [(2008) 4 SCC 54]** and **ANSS Rajashekar v. Augustus Jeba Ananth [(2020) 15 SCC 348]** . 9. The view taken in the above decisions is that the presumption arises under Section 139 of the N.I.Act is that the cheque was issued in discharge of a debt or liability. Whether such a debt is a legally enforceable one or not entailing the complainant to successfully prosecute the accused under the provisions in Section 138 of the N.I.Act, is a matter further to be proved by the complainant. It was also held therein that the accused can make use of the evidence tendered by the prosecution to probabilise his case and it is not always necessary that the accused mounted the box and furnished evidence to prove his case. 10. Here, PW1 deposed categorically before the court as to the nature of the transaction and regarding the payment of amount covered by Ext.P1 cheque. As stated, the suggestions to the contrary made on behalf of the 1st respondent was duly denied by PW1. There is nothing in his evidence to disbelieve his assertion regarding payment of 8 Crl.Appeal No.1452 of 2019 money. The 1st respondent, even inspite of reliable nature of evidence of PW1, did not choose to adduce any evidence in support of his contention. 11. In the above circumstances, I find no infirmity to the findings of the courts below with respect to the passage of consideration and due execution of Ext.P1. Therefore, I hold that the appellate court fell in error in reversing the conviction of the 1st respondent for the offence under Section 138 of the N.I.Act. Resultantly, this appeal is allowed and on setting aside the judgment dated 29.10.2019 in Crl.Appeal No.59 of 2016, the judgment of conviction and the order of sentence of the trial court are restored. **Sd/P.G. AJITHKUMAR, JUDGE** dkr