Roy v. Somasundaram and State of Kerala represented by Public Prosecutor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943 CRL.REV.PET NO. 1001 OF 2018** **AGAINST THE JUDGMENT DATED 2.6.2016 IN CC 108/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, NEDUMANGAD JUDGMENT DATED 23.6.2018 IN CRA 168/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THIRUVANANTHAPURAM REVISION PETITIONER/APPELLANT/ACCUSED:** ROY,AGED 46 YEARS, S/O NALLATHAMBI BAGYALAKSHMI BHAVAN, KANCHIYOORKONAM, KULANGARAMURI, KULATHUMMAL VILLAGE, KATTAKKADA, THIRUVANANTHAPURAM-695 572 BY ADV SMT.N.P.ASHA ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** 1 SOMASUNDARAM, AGED 52 YEARS PLAVILAVEEDU, KULANGARA MURI, KULATHUMMAL VILLAGE, KATTAKKADA, THIRUVANANTHAPURAM-695 572 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. BY ADVS. R.T.PRADEEP R1 PUBLIC PROSECUTOR SRI SANAL P RAJ,R2 K.C.HARISH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.1001/2018 -:2:- ## O R D E R Dated this the 7th day of December, 2021 This revision petition is directed against the judgment dated 23.6.2018 in Crl.A.No. 168/2016 on the files of the Additional Sessions Judge-IV, Thiruvananthapuram (for short 'the appellate court') confirming the judgment dated 2.6.2016 in C.C.No.108/2013 on the files of the Judicial First Class Magistrate Court-III, Nedumangadu (for short 'the trial court') 2. The accused faced trial for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'). It was alleged that he borrowed a sum of Rs.2,00,000/- from the complainant on 5.10.2008 and towards the discharge of the same, he issued Ext.P1 cheque. The cheque on presentation was returned as dishonoured for want of sufficient funds and on receipt of statutory notice demanding the cheque amount, the accused has not paid the same. Hence, the prosecution was launched under Section 138 of the NI Act. Crl.R.P.No.1001/2018 -:3:- 3. The complainant himself gave evidence as PW1. A witness was examined as PW2. Exts. P1 to P8 were marked. On appreciation of evidence, the trial court found the accused guilty of the offence punishable under Section 138 of the NI Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.2,25,000/-, in default to suffer simple imprisonment for a further period of three months. The fine amount on recovery was ordered to be paid to the complainant as compensation under 357 of Cr.P.C. In appeal, the appellate court confirmed the conviction and sentence. Aggrieved by the conviction and sentence passed by both the courts below, the accused preferred this revision petition. 4. I have heard Smt. N.P. Asha, the learned counsel for the revision petitioner and Sri. R.T. Pradeep, the learned counsel for the 1[st] respondent. 5. The learned counsel for the revision petitioner submitted that the complainant failed to prove the transaction, signature and execution of cheque and, hence, presumption under Sections 118(a) and 139 of the NI Act is not available. Crl.R.P.No.1001/2018 -:4:- The counsel further submitted that in spite of the specific denial of signature in the cheque, the complainant did not take any steps to prove the signature scientifically. On the other hand, the learned counsel for the 1[st] respondent submitted that the complainant has succeeded in proving the transaction as well as execution of the cheque by examining PW1and PW2 and, hence, presumption under Section 118(a) and 139 of the NI Act is available to the complainant and the accused has failed to rebut the said presumption. The counsel further submitted that both the courts below concurrently believed the oral testimony of PW1 and PW2 and this Court in revision is not expected to reappreciate the evidence. 6. The definite case of the complainant is that the accused is his friend and out of the said friendship the accused borrowed a sum of Rs.2,00,000/- from him on 5.10.2008 and towards the discharge of the said amount, Ext.P1 cheque was issued. To prove the transaction and issuance of the cheque, the complainant as well as a witness were examined. The defence version is that the accused had borrowed a sum of Rs.25,000/from the deceased brother of the complainant and at the time of Crl.R.P.No.1001/2018 -:5:- the said transaction a blank cheque was issued which was misused by the complainant. 7. A negotiable instrument including a cheque carries presumption of consideration in terms of S.118(a) and under S.139 of the N.I. Act. S.118(a) and S.139 read as under: _"_ _**118. Presumptions as to negotiable instruments.--** Until the contrary is proved, the following presumptions shall be made:--_ _(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;"_ _**"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 S.138 for the discharge, in whole or in part, of any debt or other liability."_ The presumption under S.139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is the mandate Crl.R.P.No.1001/2018 -:6:- of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of S.138. 8. The Supreme Court of India in _**Hiten P. Dalal v. Bratindranath Banerjee**_ [(2001) 6 SCC 16] and in _**Rangappa v. Sri Mohan**_ [(2010) 11 SCC 441] held that the cheque shall be presumed to be for consideration unless and until, the Court forms a belief that the consideration does not exist or considers the non-existence of consideration was so probable that a prudent man would under no circumstances of the case, act upon the plea that the consideration does not exist. In _**Uttam Ram v. Devinder Singh Hudan and Another**_ [2019 (5) KHC 179], it was held that when a cheque is issued, it is presumed that the cheque was drawn for consideration and the holder of cheque received the same in discharge of an existing debt. It was further observed that: “ _A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since_ Crl.R.P.No.1001/2018 -:7:- _there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability_ ”. In _**Kumar Exports v. Sharma Carpets**_ [(2009) 2 SCC 513], the Supreme Court held 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 man would under the circumstances of the case, act upon the plea that they did not exist_ ”. In _**Bir Singh v. Mukesh Kumar**_ (AIR 2019 SC 2446), it was held that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It was further held that it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque Crl.R.P.No.1001/2018 -:8:- is duly signed by the drawer. It was also 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 cheque was not issued in discharge of a debt. Recently in _**Kalamani Tex and Another v.**_ _**P. Balasubramanian**_ (2021 (2) KHC 517), the Supreme Court again held that once signature of an accused on cheque is established, then ‘reverse onus’ clause becomes operative, and in such a situation, obligation shifts upon the accused to discharge presumption imposed upon him. 9. It is true that when PW1 was examined the accused has disputed his signature in the cheque. It is also true that PW2 in cross examination stated that he did not see the accused putting his signature. But, PW1 in categoric terms has deposed that the cheque in question was signed by the accused in his presence at the time of borrowal. There is nothing to disbelieve the said version. That apart, the accused did not take any steps to send the signature in Ext.P1 cheque for examination by a scientific expert. Once the signature, execution and handing Crl.R.P.No.1001/2018 ## -:9:- over of the cheque are satisfactorily proved, the presumption under Section 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said evidence. No evidence has been adduced by the accused to substantiate the defence plea that the cheque in question was issued in blank in connection with the transaction he had with the deceased brother of the complainant. In spite of the receipt of the lawyer notice, the accused did not send any reply. There is absolutely no evidence or circumstances probablising the defence set up by the accused. Both the courts below concurrently found that the complainant has succeeded in proving the transaction as well as issuance of cheque by the appreciation of the oral testimony given by PW1 and PW2. This court under the exercise of jurisdiction under Section 397 read with 401 of Cr.P.C cannot re-appreciate or re-evaluate the evidence. For all these reasons, I am of the view that the revision petitioner is not entitled for any relief. Accordingly, the revision petition stands dismissed. Crl.R.P.No.1001/2018 -:10:- The learned counsel for the revision petitioner submitted that some time may be granted to the revision petitioner to make the payment. The revision petitioner is granted three months' time to deposit the fine amount. The revision petitioner shall appear at the court below within three months form today, after giving prior notice to the counsel for the complainant, to suffer sentence till rising of court and he shall also deposit the fine amount on that day at the court below. Needless to say, the court below shall release the fine amount to the complainant. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge