Suchitra R. Babu v. S. Devakumari and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020/28TH KARTHIKA, 1942** **Crl.Rev.Pet.No.1386 OF 2010** **AGAINST THE JUDGMENT IN CRIMINAL APPEAL No.94/2009 OF ADDITIONAL SESSIONS COURT-I, MAVELIKARA DTD.16.2.2010** **CC 392/06 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKARA DTD.13.2.2009** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SUCHITRA.R.BABU, BNRA 145, PRABHATHAM, BHAGAVATHI NAGAR, KOWDIAR.P.O, THIRUVANANTHAPURAM DISTRICT.** **BY ADV.SRI.MANOJ P.KUNJACHAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** - **1 S.DEVAKUMARI, KRISHNALAYAM, KADAVOOR MURI, KARIPPUZHA, MVELIKKARA.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.S.PRAKASH** **R2 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-11-2020, THE COURT ON 19-11-2020 PASSED THE FOLLOWING:** Crl.R.P.No.1386 of 2010 ..2.. ## **ORDER** Dated this the 19[th] day of November, 2020 This criminal revision petition is directed against the judgment dated 16.02.2010 rendered by the Additional Sessions Court-I, Mavelikara, in Crl.Appeal No.94 of 2009, whereby the learned Additional Sessions Judge-I dismissed the appeal, confirming the conviction and sentence rendered by the trial court to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.6,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months more under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act'). 2. The revision petitioner was the accused in C.C.No.392 of 2006 on the file of the Judicial First Class Magistrate Court-I, Mavelikara and the appellant in Crl.Appeal No.94 of 2009 on the file of the Additional Crl.R.P.No.1386 of 2010 **==> picture [22 x 8] intentionally omitted <==** Sessions Court-I, Mavelikara. The 1[st] respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the N.I.Act against the accused. Upon consideration of the complaint, the learned magistrate is _prima facie_ satisfied that the case is made out against the accused. Hence, the learned Magistrate took cognizance of the offence under Section 138 of the N.I.Act and the case was taken on file as C.C.No.392/06. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated. 3. It is the case of the complainant that the accused borrowed a sum of Rs.6,00,000/- from the complainant and issued a cheque dated 5.11.2005 for Rs.6,00,000/- drawn on the account maintained by the accused with Federal Bank, Pongummoodu. The complainant presented the cheque for encashment before Crl.R.P.No.1386 of 2010 **==> picture [22 x 8] intentionally omitted <==** the Federal Bank, Mavelikara Branch, but the cheque was dishonoured for want of sufficient funds. Statutory notice was issued on 24.3.2006 to the accused calling upon her to pay the amount. The accused received the notice on 29.3.2006. Ext.P6 is the acknowledgment card. However no reply was sent. Hence, the complaint. 4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PWs.1 to 4 were examined and marked Exts.P1 to P9 on prosecution side. After the witness for the complainant had been examined, the accused was questioned under Section 313(1)(b) of the Cr.P.C. for the purpose of enabling her to explain any circumstance appearing in the evidence against her. She denied all the circumstances. She stated that the brother of PW1 was working as a Purchase Manager of the firm of Crl.R.P.No.1386 of 2010 **==> picture [22 x 8] intentionally omitted <==** the accused. He was entrusted with the signed blank cheques for business purposes. While so, he was terminated from the service alleging financial misappropriation. This case was falsely initiated against her by mis-utilizing one of the cheques which was entrusted with the brother of PW1. She has not received any money from PW1. To substantiate her case DWs.1 and 2 were examined and marked Exts.D1 to D5. 5. On appreciation of the evidence, the learned Magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for the reason 'want of sufficient funds'. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. Hence, the learned Magistrate concluded that the cheque was issued by the accused for the discharge of debt or liability. Crl.R.P.No.1386 of 2010 ..6.. 6. Heard Sri.Manoj.P.Kunjachan, the learned counsel for the revision petitioner, Sri.S.Prakash, the learned counsel for the 1[st] respondent and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 2[nd] respondent-State. 7. In order to determine the question whether the offence punishable under Section 138 of the N.I.Act is made out against the accused, it is necessary to examine the Penal provision of Section 138 of the N.I.Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the N.I.Act. Section 118 of the N.I.Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section Crl.R.P.No.1386 of 2010 **==> picture [22 x 8] intentionally omitted <==** 118 of the N.I.Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. That apart, Section 139 of the N.I.Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the N.I.Act, it becomes evident that in a trial under Section 138 of the N.I.Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the Crl.R.P.No.1386 of 2010 **==> picture [22 x 8] intentionally omitted <==** execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the N.I.Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Crl.R.P.No.1386 of 2010 **==> picture [22 x 8] intentionally omitted <==** 8. In this case, the complainant was examined as PW1. She stated that the accused borrowed an amount of Rs.6,00,000/- from her for business purpose and issued Ext.P1 cheque for the legally enforceable debt. The main contention of the accused is that brother of PW1 was working as a Purchase Manager of the firm of the accused and he was entrusted with the signed blank cheques for business purpose. He was terminated from service on account of financial misappropriation. DW1 is the brother of PW1. He stated that he was not working as a Purchase Manager of the accused. He identified the signature in Ext.D1. According to him, he was working as the State Executive of the HDFC Bank and the accused was one of his customers. He would say that he was a causal visitor in connection with business of the firm of the accused. He further stated that he filed Ext.D2 petition before the Cantonment Police Station claiming an amount of Crl.R.P.No.1386 of 2010 **==> picture [28 x 8] intentionally omitted <==** Rs.16,00,000/- from the accused. He denied the allegation that he was instrumental in filing this case. 9. Ext.D1 would go to show that DW1 had signed therein in his capacity as Purchase Manager of Jyothis Electrical Industries. Ext.D4 is the copy of the account opening form. Exts.D4 and D5 would show that DW1 was working as Purchase Manager of the accused. Relying on the statement of DW1, the learned counsel for the revision petitioner contended that false and frivolous case was foisted against the accused at the instance of DW1. 10. However the trial court has considered the evidence of PW1 that she lent money through bank transactions. According to PW1, the accused received Rs.8,75,000/- in two installments by way of bank transactions. By the evidence of PWs.2 and 3, the complainant proved that Rs.8,75,000/- was transferred from PW1 to the firm of the accused. Thereafter the Crl.R.P.No.1386 of 2010 **==> picture [28 x 8] intentionally omitted <==** accused returned Rs.2,00,000/- to PW1. For the balance amount of Rs.6,00,000/-, Ext.P1 was issued. PW3 is the Assistant Manager of Federal Bank, Mavelikara Branch. According to him, 11.10.2004, Rs.4,75,000/- was transferred from the account of PW1 to the firm of the accused. Ext.P7 is the attested copy of the payment slip. PW4 is the Manager-in-charge of Catholic Syrian Bank, Manakkara Branch. According to him, PW1 was an account holder of the bank and on 11.12.2004 a demand draft of Rs.4,00,000/- was issued to Sudharsana Trade Links. Ext.P8 series is the copy of the D.D.voucher and cheque. Relying on the oral evidence of PWs.1, 2 and 4, the trial found an opinion that an amount of Rs.8,75,000/- was received by the accused through the bank. In view of the clear banking transaction, the trial court held that the evidence of DW1 is not sufficient to hold that the case advanced by the complainant is false. Crl.R.P.No.1386 of 2010 **==> picture [28 x 8] intentionally omitted <==** 11. The learned counsel for the revision petitioner contended that the complainant has no financial capacity to pay the amount covered under the cheque and the complainant has failed to prove that the transaction covered under the cheque is for a legally enforceable debt. It is also contended that due notice was not served on the accused before initiating prosecution. The difference in signature in Ext.P6 acknowledgment card is taken as a ground. PW2 who was the Postman who delivered the postal article to the accused stated before court that the postal articles were served on the addressee. The official act of the Postman is presumed to be done rightly. Mere difference in signature in the acknowledgment card is not an indication that the accused had not received the statutory notice. This contention was rightly repelled by the trial court and the appellate court. Relying on the decisions in **Jacob.K.M. v. State of Kerala & Another** [2020 (1) KHC 291], **Basalingappa v.** Crl.R.P.No.1386 of 2010 ..13.. **Mudibasappa** [2019 (2) KHC 451], **Raveendranath.K.P. v. K.P.Padmanabha Kurup and Another** [2017 (5) KHC 96], **Divakaran.K.K. v. State of Kerala and Another** [2016 (4) KHC 901] and **Jose v. P.C.Joy** [2008 (3) KHC 241] the learned counsel for the revision petitioner/accused contended that the presumption under Sections 118 and 139 of the N.I. Act has been rightly rebutted by the accused. 12. It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section Crl.R.P.No.1386 of 2010 **==> picture [28 x 8] intentionally omitted <==** 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that she has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. In **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197],** the Supreme Court held that in view of Section 139 of the N.I.Act read with Section 118 of the N.I.Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- _“39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of_ Crl.R.P.No.1386 of 2010 ..15.. _the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative._ _40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 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.”_ 13. In view of the above, both the trial court and the appellate court rightly held that the burden was on the accused to disprove the initial presumption under Sections 118 and 139 of the N.I.Act. The burden is not discharged rightly. Hence, the conviction against the accused for the offence under Section 138 of the N.I.Act is only to be upheld. Crl.R.P.No.1386 of 2010 ..16.. 14. Coming to the question of sentence, Ext.P1 cheque was executed as early as on 05.11.2005. The accused has been conducting this criminal case for the last 15 years. Considering the facts and circumstances, it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed. 15. In the result, the criminal revision petition is partly allowed. The conviction against the accused under Section 138 of the N.I.Act is confirmed. The sentence is modified as follows:- The accused is sentenced to pay a fine of Rs.6,00,000/- (Rupees six lakh only) and in default of payment of fine to undergo simple imprisonment for a period of six months. In view of the situation prevailing in the country due to Covid-19 pandemic, the accused is given six months' time from today to pay the fine amount. In case the fine amount is deposited by the accused before the trial court as ordered, the same Crl.R.P.No.1386 of 2010 **==> picture [28 x 8] intentionally omitted <==** shall be disbursed to the complainant as compensation in accordance with rules. In the event of failure to pay the fine amount, the trial court shall execute the sentence in accordance with law. Registry is directed to send back the records to the trial court for execution of sentence. Sd/- **N.ANIL KUMAR, JUDGE** skj