Subair v. Kunhaidru Pattazhi and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933** **Crl.Rev.Pet.No. 506 of 2012 ()** **-----------------------------CRA.214/2010 OF SESSIONS COURT (ADHOC)-II, MANJERI ST.15/2010 of J.F.C.M.COURT-II, TIRUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED::** **---------------------------------------** **SUBAIR,** **S/O MOHAMMED KUNHU, RIYAS MANZIL, S.P. PURAM NADAYARA, VARKALA AMSOM, MUTTUPPALAM DESOM CHIRAYINKEEZHU, THIRUVANANTHAPURAM.** **BY ADV. SRI.K.K.MOHAMED RAUF** ## **RESPONDENTS/COMPLAINANT AND STATE::** **-----------------------------------** **1. KUNHAIDRU PATTAZHI, S/O ABDUL SALAM, IRIMBILIUM AMSOM DESOM IRIMBILUM P.O. TIRUR TALUK, MALAPPURAM-676 103** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-02-2012 ALONG WITH CRL.R.P.511/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **STK** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. Nos. 506 & 511 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of February, 2012. ## **ORDER** These two cases arise out of the same transaction in which, according to the complainant, the accused had borrowed a sum of Rs.3,10,000/- and executed Ext.P6 agreement, whereby he had undertaken to repay the amount within three months. Four cheques were also handed over as security for the said amount. Since the amount was not paid, all the cheques, i.e. two cheques for Rs.1,00,000/- each, Rs.50,000/- and Rs.60,000/- were presented for encashment and they bounced for want of funds in the account of the accused. Statutory notices issued to the accused did not invoke any reply nor was the amount paid. Hence the complaints were laid. 2. Cognizance of the offence was taken by the court below. On appearance of the accused, particulars of the offence were read out to him, to which he pleaded not Crl.R.Ps.506 & 511/2012. 2 guilty and claimed to be tried. In both the cases complainant was examined as P.W.1. In S.T.15 of 2010, from which Crl.R.P. 506 of 2012 arises, P.Ws.1 to 6 were examined and Exts. P1 to P6 were marked from the side of the complainant. Ext.P1, the cheque for Rs.1,00,000/-, is involved in this case. After the close of the complainant's evidence, the accused was questioned under Section 313 Cr.P.C., in which he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. In S.T.14 of 2010, from which Crl.R.P.511 of 2012 arises, P.Ws.1 to 4 were examined and Exts. P1 to P12 were marked from the side of the complainant. Ext.P1 for Rs.1,00,000/-, Ext.P2 for Rs.60,000/- and Ext.P3 for Rs.50,000/-, for a total amount of Rs.2,10,000/-, are the cheques involved in this case. After the close of the complainant's evidence, the accused was questioned under Section 313 Cr.P.C., in which he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Crl.R.Ps.506 & 511/2012. 3 3. Both the courts below on an appreciation of the evidence in the case found that the complainant was successful in establishing that he had paid a total sum of Rs.3,10,000/- to the accused and that for discharge of the said debt the accused had issued the cheques, which on presentation returned for want of funds in the account of the accused. The courts below therefore found the accused guilty of the offfence and the trial court convicted and sentenced him to undergo imprisonment till the rising of the court and to pay the respective cheque amounts as compensation under Section 357(3) Cr.P.C. with a default sentence in each case. In appeal, the appellate court confirmed the conviction and sentence passed by the trial court. 4. When these revision petitions were taken up for admission, learned counsel appearing for the accused contended that going by Ext.P6 in Crl.R.P.506 of 2012 (marked as Ext.P12 in the other case), which is an agreement, four cheques were issued at the time of Crl.R.Ps.506 & 511/2012. 4 borrowel of the amount. There is nothing to show that those cheques were filled up at the relevant time and he contended that the cheques were filled up by the complainant and presented for encashment. If that be so, according to learned counsel, there is no proof of due execution of the cheques. For the said proposition, learned counsel relied on the decision reported in **Santhi v. Mary Sherly** (2011(3) K.L.T. 273). It is also contended that going by the agreement relied on by the complainant, the cheques were infact handed over as security and therefore they would not come within the purview of Section 138 of the N.I. Act. For the said proposition, learned counsel relied on the decision reported in **M.S.Narayana Menon v. State of Kerala** ((2006) 6 SCC 39). 5. Both the contentions are without any merit whatsoever. The evidence adduced from the complainant's side in both the cases is sufficient to show the transaction between the accused and the complainant. The execution of Ext.P6 in Crl.R.P.506 of 2012 and Ext.P12 in Crl.R.P.511 of Crl.R.Ps.506 & 511/2012. 5 2012 clearly show the liability incurred by the accused. The accused had no case that he had discharged the liability and the cheques have been misused. 6. In fact, no evidence was adduced by the accused to show that he had discharged the liability. Both the courts below have found on the facts of the case and the evidence available on record that the complainant is entitled to take the aid of the presumption available under Sections 139 and 118 of N.I. Act. In the decision reported in **Santhi's case** (supra), the court held that merely because the signature is admitted, it does not mean that the execution is admitted. In the case on hand the complainant adduced evidence to show that the cheques were infact issued by the accused and there is no contra evidence. There is no evidence from the side of the accused to show that what the complainant deposed before court is untrue or contrary to fact. Moreover, the presumption available under Section 139 is in respect of a cheque which has been issued under Section 138 of N.I. Act. All that Section 138 of Crl.R.Ps.506 & 511/2012. 6 N.I. Act says is that the cheque should be drawn on an account maintained with a banker for payment of any amount of money to another person from out of that account for the discharge of whole or in part of a debt of liability. Those are the conditions to call an instrument as cheque for the purpose of Section 138 of N.I. Act. If such a cheque is issued, then the presumption under Section 139 is available to the complainant and the burden is on the accused to rebut the presumption. In the case on hand, there is no attempt on the side of the accused to rebut the presumption. It is true that the burden is light on the accused and preponderance of probabilities would suffice. But the accused cannot remain satisfied by simply denying the transaction when the complainant has adduced convincing and cogent evidence. Moreover, signature on the cheque and its issuance are admitted. 7. In the decision reported in **M.S. Narayanan's case** (supra) it was held that if the cheque is issued as security, Section 138 of N.I. Act cannot apply. The facts in Crl.R.Ps.506 & 511/2012. 7 that case are totally different. In the case on hand, Exts.P6 and P12 in the respective cases clearly show the purpose for which the cheques have been issued. There is no case for the accused that the liability due to the complainant has been discharged. There is also no case for the accused that the cheques have been misused. 8. Further, it is to be noticed that in both the cases, statutory notices are issued to the accused. If he had a case that he had not issued the cheques or it was misused, that was the first opportunity for him to respond. His silence goes a long way in establishing his culpability. The present contentions are therefore only afterthoughts and are by themselves insufficient to rebut the presumption available to the complainant. 9. Both the courts below have analysed the evidence in considerable detail and have come to the conclusion that the offence has been made out. The findings are based on appreciation of the evidence in the case and unless it is shown that the findings are either Crl.R.Ps.506 & 511/2012. 8 perverse or unwarranted by the evidence on records, interference under the revisional jurisdiction is not called for. 10. Faced with the above situation, learned counsel appearing for the revision petitioner prayed that some time may be granted to the revision petitioner to pay the compensation amount in each of the cases so as to ward off default clause. 11. Considering the fact that the revision petitioner has expressed his readiness and willingness to pay the amount, it is felt that some time can be granted to him to pay the compensation amount as awarded by the courts below. In the result, while confirming the conviction and sentence passed by the trial court as confirmed by the appellate court in both the cases, the revision petitioner is given six months' time from today to pay the compensation in each case, failing which, the respective default clauses will take effect. Crl.R.Ps.506 & 511/2012. 9 The revision petitions are disposed of as above. **P. BHAVADASAN, JUDGE** sb.