Susan Jimmy v. Weizman Ltd and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 3315 of 2004 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 397/2004 of V ADDITIONAL SESSIONS COURT DATED 18-09-2004** **AGAINST THE JUDGMENT IN CC 833/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ERNAKULAM DATED 31-03-2004** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **SUSAN JIMMY, PATTASSERIL HOUSE, BOY'S HIGH SCHOOL, TRIPUNITHURA.** **BY ADV. SRI.VARGHESE C.KURIAKOSE** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** **1. M/S.WEIZMAN LTD, LAXMI CHAMBERS,** - **40/7804, M.G.ROAD, ERNAKULAM REPRESENTED, BY POWER OF** - **ATTORNEY HOLDER MR.AJAI KUMAR, S/O. K.NARAYANAN PILLAI, PERUMBAVOOR.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.3315 of 2004 ---------------------------------------------Dated this the 17[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.397/2004 of Additional Sessions Judge- V, Ernakulam. He was accused in C.C.No.833/1999 before Judicial First Class Magistrate Court-I, Ernakulam u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). The learned Magistrate convicted the accused u/s.138 of the N.I. Act and sentenced to imprisonment for one month and pay compensation of 8409/-to PW1 under Section 357(3) Cr.P.C.₹ Against that, he preferred Crl.Appeal No.47/2004 before Additional Sessions Court-V, Ernakulam, where the learned Crl.R.P. No.3315/2004 2 Additional Sessions Judge modified the sentence till rising of the Court. Being aggrieved by that, the accused preferred this revision petition. 2. The complainant is a Company incorporated under the Companies Act. It's case is that in order to make monthly payment towards the complainant, the accused issued a cheque for 8409/- drawn on Canara Bank,₹ Kadavanthra. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant issued a lawyer notice demanding the due amount. Even after receipt of the amount, there was no payment. In the circumstances, the 2[nd] respondent filed a complaint in the Judicial First Class Magistrate Court-I, Ernakulam. In pursuance of the allegation, the Power of attorney holder of the Company was examined as PW1 and his documents were marked as 3 Crl.R.P. No.3315/2004 Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. 3. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. Crl.R.P. No.3315/2004 4 4. Heard both sides. The power of attorney holder of the complainant was examined as PW1. His evidence shows that Ext.P1 was issued to discharge the monthly instalment to be paid to the complainant in connection with the hire purchase agreement. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo. Ext.P3 is the intimation. He demanded the amount by giving a notice in writing. Ext.P4 is the notice. Ext.P5 is the postal receipt. Ext.P6 is the postal acknowledgment card. Ext.P7 is the power of attorney. Ext.P8 is the extract of bank account. Analysing the evidence, it is found that when Ext.P1 cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. When Cheque is dishonoured for the reason of funds insufficient, a presumption u/s.139 of the N.I. Act can be drawn in favour of the holder of the Crl.R.P. No.3315/2004 5 cheque. (Relied **Mandvi Co-operative Bank Ltd V. Nimesh B Thakore** (AIR 2010 SC 1402), **Anil Hada V. Indian Acrylic Ltd** ( AIR 2000 SC 145), **Rangappa** v. **SriMohan** [(2010) 11 SCC 441] and **Anilkumar** v. **Shammy** [2002 (3) KLT 852]. 5. According to Section 139 of the N.I. Act, 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. No rebuttal evidence has been adduced by the revision petitioner to rebut the presumption u/s.139 of the N.I. Act. In the light of the statutory presumption and the documentary evidence, the trial Court convicted the accused, which was upheld by the appellate Court. I do not find any illegality in the finding of the appellate Court. Therefore, there is no merit in this revision petition and it is dismissed. Crl.R.P. No.3315/2004 6 The revision petitioner is directed to surrender in the trial Court to undergo the modified sentence imposed by the appellate Court. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.3315/2004 7