SINDU.S v. CHINNAMMA THOMAS & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** **Crl.Rev.Pet.No.374 OF 2019** **AGAINST THE JUDGMENT DATED 23-02-2019 IN CRA 5/2018 OF SESSIONS COURT, ALAPPUZHA** **AGAINST THE JUDGMENT DATED 18-12-2017 IN CC 9/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SINDU.S AGED 40 YEARS W/O ANANTHA KRISHNAN, PROPRIETRIX, JAAN FOREX, RAIBAN COMPLEX, BOAT JETTY, ALAPPUZHA-688 011 RESIDING AT VELUTHERIL, SANATHANAPURAM P.O.KALARCODE, ALAPPUZHA 688 003.** **BY ADVS. SRI.R.AZAD BABU SMT.REJITHA RAJAN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 CHINNAMMA THOMAS, AGED 67 YEARS W/O THOMAS, ERUMADATHIL HOUSE, THATHAMPALLY WARD, THATHAMPALLY P.O.ALAPPUZHA 688 013.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **R1 BY ADV. SRI.E.RAFEEK R1 BY ADV. SRI.GOKUL DAS V.V.H. SRI AJITH MURALI-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.01.2020, THE COURT ON 28.01.2020 PASSED THE FOLLOWING:** Crl.R.P.No.374/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.374 of 2019 ----------------------------------------------Dated this the 28[th] day of January, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.9/2017 on the file of the Court of the Judicial First Class Magistrate-IV, Alappuzha. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted her thereunder. The trial court sentenced the petitioner to pay a fine of Rs.9,50,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be paid to the complainant as compensation. 3. The petitioner filed Crl.A.No.5/2018 before the Court Crl.R.P.No.374/2019 3 of Session, Alappuzha challenging the order of conviction and sentence passed against her by the trial court. The appellate court confirmed the conviction as well as sentence against the petitioner and dismissed the appeal. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against her by the courts below, the accused in the case has filed this revision petition. 5. Heard the learned counsel for the revision petitioner and also the first respondent/complainant. 6. The case of the complainant is as follows: The accused is a person engaged in foreign exchange business. She is the proprietor of the establishment by name “Jaan Forex”. The accused had borrowed a total amount of Rs.10,50,000/- from the complainant on different occasions till the end of the year 2013. In April 2014, the accused repaid an amount of Rs.1,00,000/- to the complainant. Towards the balance amount due from her to the complainant, the accused issued a cheque dated 21.06.2014 for Rs.9,50,000/-. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no Crl.R.P.No.374/2019 4 sufficient amount in the account of the accused. The complainant sent a notice to the accused demanding payment of the amount of the cheque. The accused received the notice. She sent a reply raising false contentions. She did not pay the amount of the cheque. 7. During the trial of the case, the complainant was examined as PW1 and her son was examined as PW2. Exts.P1 to P10 documents were also marked on the side of the complainant. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence that, during the period 2012-2013, the accused had borrowed Rs.10,50,000/- from her in about six transactions and that the accused had also given six cheques for discharging the liability incurred. PW1 gave evidence that the accused had promised to pay interest on the amount at the bank rate. PW1 also gave evidence that, when she demanded the amount from the accused, on 26.12.2013, the accused executed an agreement acknowledging receipt of Rs.10,50,000/-. PW1 further gave evidence that, in the month of April 2014, the accused repaid an Crl.R.P.No.374/2019 5 amount of Rs.1,00,000/- and she promised that the balance amount would be paid within a period of two months. PW1 also stated that, in June 2014, the accused issued Ext.P1 cheque for Rs.9,50,000/- in her favour in discharge of the balance amount due from her. PW1 also gave evidence that the cheques earlier given by the accused were then cancelled in her presence. 9. The son of the complainant was examined as PW2. He gave evidence regarding the source of the amount which was paid by his mother to the accused. He stated that he was in England during the period 2006-2012 and though he was studying there, he had part time job there. He also gave evidence that he had earlier worked in Singapore. The copies of bank account statements in the name of the complainant and her son were produced to prove the financial capacity of the complainant. 10. The plea of the accused was that she had borrowed only an amount of Rs.3,00,000/- from the complainant and that she had given ten signed blank cheques as security and that the complainant misused one of the aforesaid cheques and filed the Crl.R.P.No.374/2019 6 case. 11. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out in the crossexamination of PW1 to prove that the plea is probable. 12. The evidence of PW1 proves the transaction between her and the accused. The evidence of PW1 is corroborated by Ext.P6 series cancelled cheques produced by her and also Ext.P7 agreement executed by the accused acknowledging the liability of Rs.10,50,000/-. 13. The evidence of PW1 also proves execution of Ext.P1 cheque by the accused and delivery of the same to her by the accused in discharge of the liability. 14. Once the execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is on the accused to rebut the presumption. The accused failed to rebut the presumption in any manner. 15. Learned counsel for the petitioner contended that the complainant failed to prove the source of the amount. There is no merit in the contention. The accused admits that she had Crl.R.P.No.374/2019 7 borrowed an amount of Rs.3,00,000/- from the complainant. It means that she has no dispute with regard to the financial capacity of the complainant to lend at least that much of money. Moreover, the evidence of PW1 and PW2 and the bank account statements produced by the complainant prove that the complainant is a person having financial resources. 16. Moreover, absence of documentary evidence to show the source of funds of the complainant to advance the loan is not a relevant consideration in view of the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the Act (See **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876).** The complainant need not prove the debt as in a suit for recovery of money (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287)** 17. Learned counsel for the petitioner also contended that the complaint does not contain the details of the original transaction and it is fatal to the case of the complainant. In **Shree Daneshwari Traders v. Sanjay Jain : AIR 2019 SC 4003** , the Supreme Court has held as follows: Crl.R.P.No.374/2019 8 _“The courts below disbelieved the evidence of the complainant on the ground that there are no averments in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the - evidence of PW 1 on the ground that there were no averments in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part”._ (emphasis supplied). 18. The courts below have properly analysed the evidence in the case and come to the right conclusion. There is no illegality, impropriety or perversity in the appreciation of evidence by the courts below. Conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed. Crl.R.P.No.374/2019 9 19. The trial court has sentenced the accused only to pay a fine of Rs.9,50,000/-, which is equivalent to the amount of the cheque. There is also no sufficient ground to interfere with the sentence imposed on the petitioner. 20. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court, which stands affirmed by the appellate court, is confirmed. However, the petitioner/accused is granted a period of six months from today to remit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge