Shiyala v. Riya Travels and Tours India Ltd and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-11-14
Court Decision / Holding: This revision petition is dismissed. The High Court recognizes the concurrent conviction but grants six months until 31.05.2015 to pay the amount, with execution kept in abeyance during that period. It directs that payment proof, if provided, will be treated as substantial compliance of the trial court’s directives. The order cites Beena v. Balakrishnan Nair and Sivankutty v. John Thomas to justify substantial compliance procedures and recording thereof in the fine register. A certified copy of the order should be issued only on production of the trial court judgment.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Shiyala

Respondents

Riya Travels and Tours India Ltd
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri A. C. Devy

Counsels for Respondents

• Sri N. Suresh (Public Prosecutor)

Case Synopsis & Summary

This is a criminal revision petition filed by Shiyala challenging a conviction under Section 138 of the Negotiable Instruments Act for issuing a cheque in discharge of a debt owed to Riya Travels and Tours India Ltd. The cheque for Rs. 60,000/- was dishonoured for insufficient funds, with the notice of dishonour and the unclaimed return of the notice forming part of the record. The defence asserted that there was no proved debt or precise amount due, that the accused repeatedly supplied travel services on credit, and that the signature on a blank signed cheque had been misused, thereby contesting the link between the cheque and liability. The trial court convicted, imposing simple imprisonment till the rising of the court and directing payment of Rs. 80,000 as compensation under Section 357(3) Cr.P.C., with default imprisonment. The appellate court affirmed. On admission before the Kerala High Court, the court weighed whether PW1’s testimony and the presumptions under Sections 139 and 118 NI Act were sufficient to sustain a conviction in the absence of rebuttal evidence. The High Court affirmed the concurrent findings but also noted authorities Beena v. Balakrishnan Nair and Sivankutty v. John Thomas, using them to justify treating partial payments as substantial compliance and to extend time for payment. Ultimately, the petition is dismissed, with six months’ time granted to pay the amount and execution stayed pending payment, subject to proof of payment.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSections 139 and 118 of the Negotiable Instruments ActSection 357(3) of the Code of Criminal Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that PW1’s evidence is not sufficient to prove execution of the cheque and that proper service of notice is absent. She asserts she had issued a blank signed cheque earlier, that the complainant’s accounts do not establish a clear debt or liability, and that the cheque was misused. There is no rebuttal evidence to connect the cheque with the claimed debt, and the defence challenges the foundation of guilt under Sec. 138 NI Act.

Contentions of Respondents

The prosecution argues that PW1’s testimony and the statutory presumptions under Sections 118 and 139 NI Act establish the debtor-creditor relationship and liability under the bounced cheque, that notice was attempted and that concurrent findings should stand. The argument emphasizes the validity of the original complaint, the dishonour of the cheque, and the sufficiency of evidence to sustain conviction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Beena v. Balakrishnan Nair & another	2010 (2) KHC 851	Positive	Cited to justify treating payment as substantial compliance of lower court directions and recording in the fine register.
Sivankutty v. John Thomas & another	2012 (4) KLT 21	Positive	Cited to support the concept of substantial compliance and related procedural directions.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 14TH DAY OF NOVEMBER 2014/23RD KARTHIKA, 1936** **Crl.Rev.Pet.No. 1960 of 2014 () --------------------------------** **AGAINST THE ORDER/JUDGMENT IN CRA 91/2014 of III ADDITIONAL SESSIONS JUDGE,ERNAKULAM DATED 30.8.2014** **AGAINST THE ORDER/JUDGMENT IN CC 209/2011 of J.F.C.M.VII, ERNAKULAM DATED 6.2.2014** **REVISION PETITIONER: --------------------** **SHIYALA, AGED 55 YEARS, SHIYALA TRAVELS, MUNICIPAL BUS STAND BUILDINGS, SOUTH CHALAKKUDY.** **BY ADV. SRI.A.C.DEVY** **RESPONDENTS:** **------------** **1. RIYA TRAVELS AND TOURS INDIA LTD BAB CHAMBERS, ATLANTIS JUNCTION, KOCHI -15 REPRESENTED BY ALEX MATHEWS, ACCOUNTS OFFICER.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **R2 BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.1960 of 2014 .................................................. Dated this the 14[th] day of November, 2014. ## **O R D E R** The accused in C.C.209/2011 on the file of the Judicial First Class Magistrate Court-VII, Ernakulam is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant/first respondent herein against the revision petitioner alleging commission of the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). 2. The case of the complainant in the complaint was that the revision petitioner used to purchase flight tickets on credit basis and there were amounts due and in order to discharge of that liability, she had issued Exts.P2 cheque for Rs.60,000/which when presented for collection was dishonoured for the reason fund insufficient evidenced by Exts.P3 dishonour memo and that was intimated to the revision petitioner by his banker vide Ext.P4 intimation letter. The complainant issued Ext.P5 notice vide Ext.P6 postal receipt. But the same was returned with the endorsement unclaimed evidenced by Ext.P7 2 Crl.R.P.No.1960 of 2014 returned notice. The revision petitioner had not paid the amount and so she had committed the offence punishable under Section 138 of the Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, particulars of offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the authorized agent of the complainant was examined as PW1 and Exts.P1 to P8 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code and she had denied all the incriminating circumstances brought against her in the complainant's evidence. The revision petitioner had further stated that she used to purchase flight tickets on credit basis from the complainant's concern and at that time she had given a blank signed cheque and she had discharged all the liability but the cheque was not returned and misusing the same, the present complaint was filed. No evidenced was adduced on the side of the revision petitioner to prove her case. After considering the evidence on record, the Crl.R.P.No.1960 of 2014 3 trial court found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment till the rising of court and also directed to pay Rs.80,000/- as compensation to the complainant, in default to undergo simple imprisonment for one week under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.91/2014 before the Sessions Court, Ernakulam, which was made over to Third Additional Sessions Court, Ernakulam for disposal and the Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence imposed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 4. Considering the scope of enquiry and the nature of contentions raised, this Court felt that the revision can be disposed of at the admission stage itself after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent and dispensing with notice to the first respondent . 4 Crl.R.P.No.1960 of 2014 5. The learned counsel for the revision petitioner submitted that the evidence of PW1 is not sufficient to attract the offence and prove the execution of the cheque especially when the same was denied by the revision petitioner. Further notice was returned unclaimed and there is no proper service of notice. So the courts below were not justified in convicting the revision petitioner for the offence under Section 138 of the Act. 6. The learned Public Prosecutor submitted that the concurrent findings of the courts below on this aspect do not call for any interference. 7. The case of the complainant in the complaint was that the complainant concern is conducting travel services and the revision petitioner was a regular customer and she used to purchase flight tickets on credit basis and in discharge of that liability, she had issued Ext.P1 cheque for Rs.60,000/- which when presented for collection was dishonoured. The fact that the cheque was given and she purchased flight tickets on credit was not disputed. She had no clear idea about what was the amount due and what was the amount paid by her also. Crl.R.P.No.1960 of 2014 5 Ext.P8 client statement of the complainant concern will go to show that more than the amount mentioned in the cheque is due from the revision petitioner. So in the absence of any evidence adduced on the side of the revision petitioner to rebut the presumption, the courts below were perfectly justified in relying on the evidence of PW1 and also the presumptions available under Sections 139 and 118 of the Act and rightly convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings do not call for any interference. 8. As regards the sentence is concerned, the court below has sentenced the revision petitioner to undergo simple imprisonment till the rising of court and directed her to pay Rs.80,000/- as compensation, in default to undergo simple imprisonment for one week under Section 357(3) of the Code. This was confirmed by the appellate court. Maximum leniency has been shown by the courts below in passing the sentence. Further the court is entitled to award double the cheque amount as fine. In this case only Rs.80,000/- was directed to Crl.R.P.No.1960 of 2014 6 be paid as compensation, which cannot be said to be excessive or harsh. I do not find any reason to interfere with the sentence as well, as it appears to be just and proper. 9. While the case was about to be disposed of, the counsel for the for the revision petitioner submitted that the revision petitioner is a lady ailing with some illness and wanted one year time for payment of the amount. Considering the fact that the case is of the year 2011 and it is a business transaction, the period asked for repayment is excessive. However, considering the circumstances mentioned, this Court feels that six months time can be granted to pay the amount. So the revision petitioner is granted time till 31.5.2015 to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of such payment and that is being acknowledged by him in court below, then the lower court is directed to treat the same as substantial compliance of the directions of the trial court as confirmed by this Court and record the same in the respective fine register Crl.R.P.No.1960 of 2014 7 as provided in **Beena v. Balakrishnan Nair & another** (2010 (2) KHC 851) and **Sivankutty v. John Thomas & another** (2012 (4) KLT 21). With the above observations, this revision petition is dismissed. Office is directed to issue the certified copy of this order only when the revision petitioner produces the certified copy of the trial court judgment and also communicate this order to the concerned court immediately. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.1960 of 2014 8