Suresh Kumar S. v Vijaya Bank and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020/18TH BHADRA, 1942** **Crl.Rev.Pet.No.151 OF 2012** **AGAINST THE JUDGMENT IN CRL.APPEAL No.172/2009 DATED 24-10-2011 OF ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM** **ST 3/2008 DATED 03-02-2009 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SURESH KUMAR.S., S/O.SUNDARA PANICKER, THOPPIL LANE, ANAYARA.P.O., THIRUVANANTHAPURAM-695029.** **BY ADVS.** **SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN SRI.PRASANTH.M.P.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT& STATE:** - **1 VIJAYA BANK, VELLAYAMBALAM BRANCH, T.C.9/1494,** - **AKSHAYA TOWERS, SASTHAMANGALAM JUNCTION, THIRUVANANTHAPURAM-10, REPRESENTED BY ITS BRANCH MANAGER.** - **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 By Senior Public Prosecutor - Sri.M.S.Breez** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-09-2020, THE COURT ON 09-09-2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** This instant revision is directed against the judgment dated 24.10.2011 rendered by the learned Additional Sessions Judge-I, Thiruvananthapuram in Crl.Appeal No.172/2009 which arose from the judgment rendered by the learned Chief Judicial Magistrate, Thiruvananthapuram in S.T.No.3/2008 dated 03.02.2009 convicting the accused under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 2. The case of the 1[st] respondent/complainant (hereinafter referred to as 'the complainant') is that the revision petitioner/accused (hereinafter referred to as the 'accused') who stood as a guarantor for the loan of Rs.1,00,000/- taken by his wife Resmi and who in discharge of the liability of his wife issued a cheque for a sum of Rs.97,189/- to the complainant. The complainant ## **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** presented the said cheque for encashment. But the cheque was returned unpaid with the endorsement 'funds insufficient'. On 07.11.2007, the complainant issued Ext.P4 legal notice to the accused through his Advocate calling upon the accused to pay the cheque amount. The said notice, sent by registered post duly served on the accused. The accused, however did not reply to the notice nor did he pay the cheque amount to the complainant. 3. The complainant filed a criminal complaint under Section 138 of the Act before the court below. Upon consideration of the complaint, the learned Magistrate is prima facie satisfied that a case is made out against the accused. Hence the learned Magistrate took cognizance of the offence under Section 138 of the Act and the case was taken on file as S.T.No.3/2008 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram. ## **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** 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, the power of attorney holder of the complainant was examined as PW1 and marked Exts.P1 to P6. After the witnesses for the complainant had been examined and before the accused was called on for his defence, the accused was questioned under Section 313(1)(b) of Cr.P.C. for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him. According to him, he stood as guarantor for Rs.1,00,000/received by his wife Resmi. He also admitted the dishonour of Ext.P2 cheque for insufficiency of funds and the receipt of statutory notice issued by the complainant. The stand of the accused as discernible from the trend of cross-examination of PW1 is that the accused remitted the ## **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** amount in installments due to the bank under the loan transaction and that Ext.P2 cheque was one of the blank cheques deposited by him with the Bank at the time of availing the loan as guarantor to his wife. In support of his contentions, he produced Exts.D1 to D4 on his side. 5. On appreciation of the evidence, the learned Magistrate held that execution of the cheque was admitted by the accused and that it was proved by the complainant that the cheque was dishonoured on account of “insufficient funds”. 6. I heard the learned counsel for the parties at length, considered the rival contentions and material placed on record. 7. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the Penal provision of Section 138 of the Act and the **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. Section 118 of the 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 118 of the 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 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 Act for the ## **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** 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 Act, it becomes evident that in a trial under Section 138 of the 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 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 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 ## **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** 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. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. 8. It is well settled law that revision against conviction seeking to set aside the judgment of the trial court as confirmed by the appellate court, the High Court does not, in the absence of perversity upset factual findings arrived at by the trial court and the appellate court. It is not for the revisional court to re-analyse and re-interpret the evidence on record in a case where the **Crl.Rev.Pet.No.151 OF 2012** **==> picture [22 x 8] intentionally omitted <==** trial court has come to a probable conclusion. On going through the impugned judgment, this Court is of the view that the appellate court correctly appreciated Section 139 of the Act. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the 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 he 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 Act read with Section 118 of the Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or **Crl.Rev.Pet.No.151 OF 2012** ..10.. 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 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.”_ 9. In view of the above, this Court is of the view that Ext.P2 cheque bears consideration and the accused is liable to pay the amount being the guarantor of his wife Resmi for a legally enforceable debt. **Crl.Rev.Pet.No.151 OF 2012** **==> picture [28 x 8] intentionally omitted <==** 10. The learned counsel for the revision petitioner contended that both the trial court as well as the appellate court fixed the liability claimed under Ext.P2 cheque erroneously. Ext.P2 cheque was for an amount of Rs.97,189/-. Ext.P4 advocate notice was issued to the accused calling upon him to pay an amount of Rs.97,189/on 07.11.2007. Ext.D3 statement would show that as on 30.06.2007, there existed total liability of Rs.93,628/against Resmi under the loan transaction. As per the scheme of the Negotiable Instrument Act, the complainant is legally entitled to claim the amount covered under the statutory notice. Ext.D2 is a notice issued to the accused by the complainant on 28.2.2008. Issuance of Ext.D2 is admitted. As per Ext.D2 an amount of Rs.64,000/- is due to the complainant and the accused is directed to deposit the aforesaid arrears on or before 10.3.2008. The complaint was presented before the court on 21.12.2007. **Crl.Rev.Pet.No.151 OF 2012** **==> picture [28 x 8] intentionally omitted <==** It is clear that Ext.D2 notice was issued to the accused subsequent to the presentation of complaint before the trial court. But in Ext.D2 dated 28.2.2008, Rs.64,000/- is shown as arrears. When DW1 was examined, he clarified that the amount of Rs.64,000/- due as per Ext.D2 is the arrears of installment fell due as on the date of notice and Ext.P2 cheque is the entire liability under the loan transaction. DW1 admitted that Ext.D2 was sent during the pendency of the case only to persuade the party to deposit the arrears amount and to convert the nonperforming account to a performing account. The stand of the complainant is that had the accused deposited Rs.64,000/- to the complainant, the accused would have been permitted to remit the balance amount in installments. On going through Ext.D2 demand notice it is clear that Ext.P2 does not tally with Ext.D3 statement. The explanation added by DW1 is also conspicuously **Crl.Rev.Pet.No.151 OF 2012** **==> picture [28 x 8] intentionally omitted <==** absent in Ext.D2 demand notice. Ext.D2 demand notice is a printed notice issued to the accused under the seal and signature of the complainant. In Ext.D2 an amount of Rs.64,000/- is stated as the amount due to the complainant as on 10.03.2008.The trial court took cognizance of the offence under Section 138 of the N.I. Act on 01.01.2008. Having considered the facts and circumstances of the case, this Court is of the view that two interpretations are possible in respect of the amount actually due to the complainant from the accused. When two interpretations are possible, it is just and proper to take into account of an interpretation which is favourable to the accused. Going by Ext.D2 no other interpretation is also possible. It is crystal clear from Ext.D2 that the amount due to the complainant as on 10.3.2008 is Rs.64,000/-. Hence this Court is of the view that both the trial court as well as the appellate court erroneously fixed ## **Crl.Rev.Pet.No.151 OF 2012** **==> picture [28 x 8] intentionally omitted <==** the amount actually due to the complainant from the accused. The trial court convicted and sentenced the accused to undergo simple imprisonment for three months and to pay compensation of Rs.1,05,000/- to the complainant and in default of payment of compensation to suffer simple imprisonment for two months more. 11. In appeal, the appellate court allowed the appeal in part confirming the conviction but modifying the sentence as imprisonment till the rising of the court and to pay a compensation of Rs.1,05,000/- to the complainant and in default of payment of compensation to suffer simple imprisonment for three months more. The compensation amount is fixed without taking into account of Ext.D2 notice issued by the complainant and the admitted amount covered therein. Hence it is just and proper to reduce the compensation amount from Rs.1,05,000/- to Rs.64,000/-. **Crl.Rev.Pet.No.151 OF 2012** **==> picture [28 x 8] intentionally omitted <==** The Criminal Revision Petition is allowed in part. The judgment of the trial court as confirmed by the appellate court is modified. The accused is convicted and sentenced to pay a fine of Rs.64,000/-(Rupees Sixty four thousand only). The fine amount shall be deposited in the trial court within four months from this date, failing which the accused shall undergo rigorous imprisonment for a period of three months. If the amount is deposited before the trial court or paid directly to the complainant within the aforesaid period, the same shall be released or paid as compensation to the complainant. In case any amount is deposited by the accused during the pendency of this revision pursuant to an interim order issued by this Court before the trial court, the balance amount shall be deposited by the accused before the trial court as stated hereinabove. Sd/- skj **N.ANIL KUMAR, JUDGE**