Sreejith Pulikkodan v. Rama @ Rama Babu & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** **Crl.Rev.Pet.No.1395 OF 2019** **AGAINST THE JUDGMENT IN CRA 105/2018 DATED 30-03-2019 OF ADDITIONAL SESSIONS JUDGE-V, ERNAKULAM** **AGAINST THE JUDGMENT IN CC 1199/2016 DATED 28-02-2018 OF JFCM - VIII, ERNAKULAM** ## **REVISION PETITIONER/ACCUSED:** **SREEJITH PULIKKODAN AGED 34 YEARS S/O.LATE ANDY, PULIKKODAN HOUSE, KODATHAMVELLI ALAYI, ACHIKKANAM P.O., KASARGODE, PIN-671 531.** **BY ADVS. SRI.K.L.SHYAM SRI.K.K.VINOD** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 RAMA @ RAMA BABU AGED 46 YEARS W/O.LATE BABU, ARTHIPPADIKKAL HOUSE, CHAMPAKKARA P.O., VYTTILA, ERNAKULAM, PIN-682 038. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R1 BY ADV. SRI.V.C.RAJESH SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.01.2020, THE COURT ON 13.01.2020 PASSED THE FOLLOWING:** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1395 of 2019 ---------------------------------------------Dated this the 13[th] day of January, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.1199/2016 on the file of the Court of the Judicial First Class Magistrate-VIII, Ernakulam. 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 him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of six months and also directed him to pay an amount of Rs.7,00,000/- as compensation to the complainant. 3. The petitioner filed Crl.A.No.105/2018 before the Court of Session, Ernakulam challenging the order of conviction and sentence passed against him by the trial court. The learned Additional Sessions Judge confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. The Crl.R.P.No.1395/2019 3 concurrent findings of guilty, conviction and sentence made against the petitioner by the courts below are challenged in this revision. 4. Heard the learned counsel for the revision petitioner. 5. The case of the complainant/first respondent was as follows: The complainant and the accused were acquainted with each other. The accused had borrowed a total amount of Rs.7,00,000/- from the complainant. When the complainant demanded the accused to repay the amount, the accused executed and issued three cheques to her, one cheque dated 02.06.2011 for Rs.2,00,000/-, another cheque dated 10.07.2011 for Rs.3,00,000/- and yet another cheque dated 08.08.2011 for Rs.2,00,000/-, in discharge of the liability. The complainant presented the cheques in the bank. They were returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheques. The accused received the notice. He did not send any reply. He did not pay the amount. Crl.R.P.No.1395/2019 4 6. During the trial of the case, PW1 to PW3 were examined and Exts.P1 to P9 documents were marked on the side of the complainant. No evidence was adduced by the accused. 7. The complainant was examined as PW1. She gave evidence that the accused had borrowed Rs.7,00,000/- from her and that the accused executed and issued Ext.P1 series cheques in discharge of the liability. She gave evidence that the accused had received the amount of Rs.7,00,000/- not in lump on a single occasion but the amount was obtained from her on different occasions. 8. The son of the complainant was examined as PW2. He gave evidence that the accused had received money from his mother. He also gave evidence regarding the execution and delivery of the cheques by the accused to the complainant. 9. The plea of the accused was that the complainant and himself were living together in a house and that the complainant had clandestinely and fraudulently taken the signed blank cheques which was kept by him in the house and she has misused them. Crl.R.P.No.1395/2019 5 10. No evidence was adduced by the accused to prove the aforesaid plea. He did not explain under what circumstances he had kept signed blank cheques at the house. The plea raised by the accused is not at all probable and believable. 11. Learned counsel for the petitioner has mainly raised three contentions before this Court. They are: (1) the complainant has not proved execution of Ext.P1 series cheques by the accused (2) the complainant had no financial capacity to lend an amount of Rs.7,00,000/- and she failed to prove the source of money and (3) the complaint does not contain details of the transactions between the petitioner and the complainant. 12. There is no merit in the contention that the complainant could not prove execution of Ext.P1 series cheques by the accused. PW1 has given evidence regarding the execution of the cheques by the accused and delivery of the same to her by him. Her evidence in that regard is corroborated by the evidence of PW2. There is no contra evidence. Further, the accused does not dispute the signature in Ext.P1 series cheques. His plea that the signed blank cheques kept by him at the house were taken by Crl.R.P.No.1395/2019 6 the complainant contains the implied admission that the cheques bear his signature. He did not adduce any evidence to prove the aforesaid plea raised by him. In such circumstances, the evidence of PW1 and PW2 regarding the execution of the cheques by the accused has to be believed. 13. The complainant had sent Ext.P4 lawyer notice to the accused demanding payment of the amount of the cheques. The accused had received the notice. He did not send any reply to the statutory notice sent to him by the complainant. If as a matter of fact, he did not owe Rs.7,00,000/- to the complainant and if he had not executed and issued the cheques to the complainant in discharge of that liability and if the complainant had fradulently obtained the cheques and misused them, the accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving the notice from the complainant demanding a huge amount from him. The fact that the notice of demand, though duly received and acknowledged by the accused, did not evoke any response from him is a crucial circumstance against him. The very fact that the accused failed Crl.R.P.No.1395/2019 7 to reply to the statutory notice under Section 138 of the Act leads to the inference that there is merit in the complainant's version (See **Rangappa v. Mohan : AIR 2010 SC 1898** ). 14. There is primarily the evidence of the complainant to explain the circumstances under which she came into possession of the cheques, admittedly drawn on cheque leaves issued to the accused by his bank to operate his account. No contra evidence has been adduced. On broad probabilities, there is no reason to doubt or suspect the statement on oath of the complainant. The fact that the accused has no reasonable and probable explanation as to how the cheques travelled from his possession to that of the complainant is certainly a crucial aspect while considering the acceptability of the evidence of the complainant. 15. Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption is established. It is a presumption of law as Crl.R.P.No.1395/2019 8 distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the case of a mandatory presumption, the burden which rests on the accused person would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable (See **Hiten P. Dalal v. Bratindranath Banerjee: AIR 2001 SC 3897** ). 16. In the absence of any direct evidence adduced by him to rebut the presumption under Section 139 of the Act, the Crl.R.P.No.1395/2019 9 accused would advance the plea that the complainant had no financial capacity to lend an amount of Rs.7,00,000/-. It was brought out in evidence that the complainant is a worker in a tiles factory and she was earning only Rs.400/- per day as wages. 17. While considering the financial capacity of the complainant to lend the money, it is to be kept in mind that she had not advanced the amount of Rs.7,00,000/- to the accused in lump. The version of the complainant is that she had pledged her gold ornaments and also borrowed Rs.3,00,000/- from one Suresh and raised the money. Ext.P7 is the lawyer notice issued to her by Suresh demanding payment of an amount of Rs.3,00,000/- from her. It is a notice issued to her prior to the date of Ext.P1 series cheques. The complainant also produced documents to prove pledging of gold ornaments by her. In such circumstances, it has to be found that the complainant had proved the source of the money lent by her to the accused. 18. The complainant also proved Ext.P8 agreement executed by the accused by which he had agreed to pay the Crl.R.P.No.1395/2019 10 amount of Rs.7,00,000/- to the complainant. 19. Another contention raised by the accused is that the complaint does not contain the details of the transactions between the complainant and the accused. There is no invariable rule that absence of details regarding the original transaction in the complaint would make the evidence given by the complainant unreliable or the case set up by him improbable. Whether absence of such details in the complaint would affect the credibility of the testimony of the complainant or the case set up by him in evidence would depend upon the facts and circumstances of each case. If the accused has raised a probable plea regarding the possession of his cheque with the complainant and when the accused has adduced reliable evidence to prove his plea in that regard, then absence of details regarding the original transaction in the complaint may be a circumstance which enables the accused to rebut the presumption under Section 139 of the Act. In a case where the accused could not even raise a probable plea as to how his cheque, which bears his signature, happened to be in the possession of the complainant, Crl.R.P.No.1395/2019 11 and the evidence, if any, adduced by the accused in support of any plea raised, is not reliable and trustworthy, absence of details regarding the original transaction in the complaint will not affect the credibility of the evidence given by the complainant in that regard. ## 20. In **Shree Daneshwari Traders v. Sanjay Jain : AIR** **2019 SC 4003** , the Supreme Court has held as follows: _“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_ Crl.R.P.No.1395/2019 12 _other liability in whole or in part”._ (emphasis supplied). 21. The complainant is not required to prove the debt as if in a civil case. In **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287,** the Apex Court has observed as follows: _“The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. 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 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”._ (emphasis supplied) ## 22. In **Rohitbhai Jivanlal Patel v. State of Gujarat : AIR** **2019 SC 1876** , the Supreme Court has observed as follows: _“The observations of the Trial Court that there_ Crl.R.P.No.1395/2019 13 _was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques;_ Crl.R.P.No.1395/2019 14 _or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the appellant. ....... The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt._ (emphasis supplied). 23. The courts below have properly analysed and appreciated the evidence in the case and reached the correct conclusion regarding the issuance of the cheques by the accused to the complainant and the inability of the accused to rebut the presumption under Section 139 of the Act. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered by the courts below. In such circumstances, conviction of the accused for the offence punishable under Section 138 of the Act is only to be confirmed. 24. Coming to the question of sentence, it is to be noted Crl.R.P.No.1395/2019 15 that the gravity of an offence under Section 138 of the Act cannot be equated with an offence under the Indian Penal Code or other criminal offences. An offence under Section 138 of the Act is almost in the nature of a civil wrong which has been given criminal overtones (See **Kaushalya Devi Massand v. Roopkishore : AIR 2011 SC 2566** ). Substantive sentence of imprisonment shall not be imposed in such cases except in exceptional circumstances. At the same time, direction to pay compensation to the complainant by way of restitution in regard to the loss on account of dishonour of the cheque shall be made. It would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. ## 25. In **Vijayan v. Baby** ( **AIR 2012 SC 528** ), the Apex Court has held as follows: _"The Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation._ Crl.R.P.No.1395/2019 16 _Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate."_ 26. In the instant case, the date of the last cheque is 08.08.2011. More than eight years is now over. Interest @ 9% per annum on the amount of the cheques for this period would come to Rs. 5,04,000/-. Then the total amount would come to Rs. 12,04,000/-. However taking a lenient view, I find that it is proper to set aside the substantive sentence of imprisonment imposed on the petitioner by the courts below and to impose a sentence of fine of Rs.9,00,000/- on him and award that amount as compensation to the complainant. 27. In the result, the revision petition is allowed in part. Conviction of the petitioner/accused for the offence under Section 138 of the Act is confirmed. The sentence of simple imprisonment for a period of six months imposed on the petitioner by the trial court, which stands confirmed by the appellate court, is set aside. The petitioner/accused is sentenced Crl.R.P.No.1395/2019 17 to pay a fine of Rs.9,00,000/- (Rupees nine lakhs only) and in default of payment of fine to undergo simple imprisonment for a period of two months. If the fine amount is realized, it shall be given to the complainant as compensation. The petitioner is granted a period of four months from today to deposit the fine amount in the trial court. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr true copy PS TO JUDGE