Sunilkumar v. Sudhakaran Nair and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2015-11-04
Court Decision / Holding: Revision petition dismissed; conviction under Section 138 NI Act upheld; appellate modification of sentence maintained; petitioner directed to surrender to serve the modified sentence.
Final Disposition: Revision petition dismissed; custody to be served as per modified sentence; appellate judgment upheld.

Parties to the Case

Appellants / Petitioners

Sunilkumar

Respondents

Sudhakaran Nair
State of Kerala represented by the Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sri. G. Sudheer

Counsels for Respondents

• Public Prosecutor (Sri. N. Suresh)

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition (Crl.Rev.Pet.No. 3484 of 2008) arising from a conviction under Section 138 of the Negotiable Instruments Act. The revision challenges the concurrent conviction in the trial court (S.T.No.55/2005) and the appellate court’s modification of sentence. The complainant alleged that Sunilkumar issued a cheque for Rs. 91,000 drawn on Nedumangad Service Co-operative Bank Ltd, which was dishonoured for insufficent funds. After a statutory notice, a complaint was filed; PW1 testified and documents Exts. P1–P6 were admitted. The trial court convicted the accused; the Sessions Court on appeal altered the sentence to simple imprisonment until rising of the court and a fine of Rs. 91,000 (Cr.P.C. 357(3) schedule). The revision petition argues that the cheque was given as security for a prior loan in 1999 and that the alleged debt was repaid; thus there was no legally recoverable debt. The High Court analyzes the statutory framework: a presumption under Section 139 NI Act operates in favor of the holder once the cheque is dishonoured under Section 138; the burden then shifts to the accused to rebut. The court notes the dishonour was due to insufficient funds and rejects the security-cheque defense as unworthy of credit. The High Court finds no illegality in the appellate judgment and dismisses the revision petition, directing surrender to undergo the modified sentence.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 139 of the Negotiable Instruments Act, 1881Section 357(3) Cr.P.C.

Legal Doctrines & Maxims

Presumption in favour of the holder under Section 139 NI Act.
Burden on the accused to rebut the existence of a legally recoverable debt after a prima facie case is made under Section 139 NI Act.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner argues that the cheque was issued as security for a loan in 1999 and that the loan was repaid; hence there was no legally recoverable debt and the prosecution under Section 138 NI Act should fail. The defence contends that the alleged debt is not established and the cheque was misused as an instrument of harassment. The defense asserts that the security-cheque defense is credible and undermines the presumption of liability.

Contentions of Respondents

The complainant argues that the cheque was issued in discharge of a legally enforceable debt and was dishonoured for insufficient funds, invoking the presumption under Section 139 NI Act in his favor. The State, through the Public Prosecutor, supports the conviction and submits that the accused did not rebut the presumption or establish a valid defense; the evidence (Exts. P1–P6) suffices to sustain the offense.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Beena v. Muniappan	AIR 2001 SC 2995	Positive	Cited as the binding principle for drawing presumptions in favor of the holder under Section 139 NI Act.
T. Vasanthakumar v. Vijayakumari	[(2015) 8 SCC 378]	Positive	Cited to support that presumption under Section 139 would operate when the cheque and signature are accepted and the burden shifts to the accused to rebut the debt.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 4TH DAY OF NOVEMBER 2015/13TH KARTHIKA, 1937** **Crl.Rev.Pet.No. 3484 of 2008 ( )** **--------------------------------AGAINST THE JUDGMENT IN Crl.APPEAL 727/2007 of SESSIONS COURT,THIRUVANANTHAPURAM DATED 14.7.2008 AGAINST THE JUDGMENT IN S.T.C.NO.55/2005 OF JUDICIAL FIRST CLASS MAGISTRATE-IV, NEDUMANGADU DATED 14.8.2007.** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **SUNILKUMAR, S/O. SADASIVAN, LALI BHAVAN, ISRO JUNCTION, CHULLIMANOOR.P.O NEDUMANGADU.** **BY ADV. SRI.G.SUDHEER** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **-------------------------------------** **1. SUDHAKARAN NAIR,** **BINI HOUSE, KUPPAKONAM, NEDUMANGADU THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-11-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No. 3484 of 2008 ---------------------------------------------Dated this the 4[th] day of November, 2015 ## **ORDER** Revision petitioner, who is the appellant in Crl.Appeal No.727/2007 on the file of Sessions Judge, Thiruvananthapuram, challenges the concurrent conviction u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). He was the accused in S.T.No.55/2005 u/s.138 of the N.I. Act and sentenced to undergo simple imprisonment for seven months and compensation of 91,000/- u/s.357 (3) Cr.P.C. Against that,₹ he preferred the above appeal, which was modified by the appellate Court. Being aggrieved by that, he preferred this revision petition. Crl.R.P. No.3484/2008 2 2. The complainant in the trial Court is the 1st respondent in this revision petition. The complainant's case in the trial Court is that in discharge of a debt, the accused issued a cheque for ₹91,000/- drawn on Nedumangad Service Co-operative Bank Ltd No.448. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant had issued a notice to the accused. Without accepting the notice, it was returned to the sender and he did not pay the due amount. In the circumstances, he filed a complaint in the trial Court. 3. During trial, the complainant was examined as PW1. His documents were marked as Exts.P1 to P6. The incriminating circumstances brought out in evidence were denied by the accused, while questioning him. He did not adduce any defence evidence. The trial Court convicted him. Crl.R.P. No.3484/2008 3 4. Heard both sides. According to Section 138 of the N.I. Act, where any cheque drawn by a person on an account maintained by him with a bank for payment of any amount of money to another person from out of that account, for the discharge in whole or in part of any debt or liability, is returned by the bank, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. This deemed provision is subject to the statutory condition that the cheque has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the Crl.R.P. No.3484/2008 4 payee or holder in due course of the cheque makes a demand for payment of such amount by giving a notice in writing to the drawer of the cheque and non-payment of due amount after receipt of notice by the drawer of the cheque. 5. To prove the offence, the complainant was examined as PW1. His evidence shows that the revision petitioner issued Ext.P1 cheque to him. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P3 is the dishonour memo and Ext.P2 is the cheque returned remittance memo. PW1 gave a statutory notice. Ext.P4 is the copy of the notice. Ext.P5 is the postal receipt and Ext.P6 is the return notice. When cheque is dishonoured for the reason stated u/s.138 of the N.I. Act, a presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the cheque. When Crl.R.P. No.3484/2008 5 complainant proves the existence of a legally enforceable debt, the presumption under Section 139 of the Negotiable Instruments Act starts operating and burden shifts to the accused. ## 6. Section 139 reads as follows. “139. Presumption in favour of the holder - 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 for the discharge, in whole or in part, of any debt or other liability”. The principle drawing presumptions has been explained by the Apex Court in **Beena** v. **Muniappan** (AIR 2001 SC 2995). Apex Court in **T. Vasanthakumar** v. **Vijayakumari** [ (2015) 8 SCC ## 378] held as follows: “Therefore, in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was Crl.R.P. No.3484/2008 6 given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. No rebuttal evidence has been adduced in the trial Court and the trial Court convicted the accused, which was confirmed by the appellate Court. The appellate Court modified the sentence to simple imprisonment till rising of the Court and to pay a fine of 91,000/-, in default simple₹ imprisonment for four months. I do not find any illegality in the judgment of the appellate Court. Hence, there is no merit in this revision petition and it is dismissed accordingly. Crl.R.P. No.3484/2008 7 The revision petitioner is directed to surrender in the Judicial First Class Magistrate-IV, Nedumangad forthwith to undergo the modified sentence, failing which the learned Judicial Magistrate shall issue non bailable warrant against the revision petitioner. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.3484/2008 8