Syamala v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-02-07
Court Decision / Holding: The revision petition is allowed; the conviction and sentence under Section 138 NI Act are set aside, and the petitioner is acquitted of the said offence. The bail bond, if any, is discharged. If any amount was deposited pursuant to court directions, the petitioner is entitled to reimbursement from the trial court.
Final Disposition: Revision petition allowed; acquittal of the accused; conviction and sentence set aside.

Parties to the Case

Appellants / Petitioners

Syamala, W/o. Padmanabhan, 'Atheena', C.H.Nagar Housing Colony, Chevayoor Amson and Desom, Kozhikode

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Jenson Mathew, S/o Late Mathukutty, Cheerans, Marikkunnu P.O., Chevayoor Ammon and Desom, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.M. Krishnakumar
• Smt. P.A. Anitha

Counsels for Respondents

• Dr. K.P. Satheesan
• Sri. E.C. Bineesh

Case Synopsis & Summary

This is a criminal revision petition filed by the accused Syamala under Section 138 of the Negotiable Instruments Act, 1881, challenging a conviction and sentence recorded by the courts below. The complainant, Jenson Mathew, alleged that the accused borrowed Rs. 5,00,000 and issued Ext. P1 cheque in discharge of that liability. The defense contended that the daughter of the accused had, prior to her death, entrusted a blank signed cheque which the complainant allegedly misused to file the present complaint; no direct evidence showed that the accused executed Ext. P1. PW1, the complainant, stated he did not see the accused write or sign Ext. P1, and there was no independent record of the debt maintained by PW1. The trial court convicted under Sec. 138 NI Act; on appeal, Beena v. Muniyappan (AIR 2001 SC 2895) was cited, suggesting a presumption that the cheque was issued for a debt, shifting the burden to the accused to prove lack of liability. The High Court found that PW1’s evidence did not prove the execution of Ext. P1 and distinguished Beena on the facts. Consequently, the revision petition was allowed, the conviction and sentence set aside, and the petitioner acquitted. The bail bond, if any, was discharged; the petitioner may claim any deposited amount back from the trial court.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the revision petitioner argued that PW1’s evidence is not sufficient to prove the execution of Ext. P1 cheque. There is no independent record showing the debt; the accused contends a blank signed cheque was entrusted by the daughter and misused to file the complaint. DW1 and Ext. D1 were produced to show the relationship and prior agreement. The petition seeks acquittal on the ground that the essential ingredient—execution of Ext. P1 by the petitioner—has not been established beyond reasonable doubt. The reliance on Beena v. Muniyappan is discussed, but the court is urged to distinguish the facts and acquit if the prosecution fails to prove execution.

Contentions of Respondents

The complainant contends that the execution of Ext. P1 is proven by PW1’s testimony and surrounding circumstances; there is a presumption under Section 139 NI Act that the cheque was issued for a debt or liability, shifting the burden to the accused to prove non-liability. The argument also emphasizes the Beena v. Muniyappan precedent as supporting the presumption of liability from the cheque.”

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Beena v. Muniyappan	AIR 2001 SC 2895	Distinguished	Beena held that where the accused has not adduced evidence to show non-execution of the cheque, the presumption applies; the present case distinguishes Beena on facts since the accused produced DW1 and Ext. D1, and the court found PW1’s evidence insufficient to prove execution.

Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 Crl.Rev.Pet.No. 288 of 2011 CRA 566/2008 of SPECIAL ADDITIONAL SESSIONS JUDGE, (MARAD CASES) KOZHIKODE ST 2461/2004 of J.M.F.C.-I,KOZHIKODE REVISION PETITIONER(S)/PETITIONER/APPELLANT/ACCUSED SYAMALA, W/O. PADMANABHAN, "ATHEENA", C.H.NAGAR HOUSING COLONY, CHEVAYOOR, AMSOM AND DESOM, KOZHIKODE. BY ADVS.SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT: 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2. JENSON MATHEW, S/O. LATE MATHUKUTTY, "CHEERANS", MARIKKUNNU P.O., CHEVAYOOR AMSOM AND, DESOM, KOZHIKODE. R2 BY ADV. DR.K.P.SATHEESAN BY PUBLIC PROSECUTOR SRI. E.C. BINEESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-02-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## B.SUDHEENDRA KUMAR, J. ......................................... ## Crl.R.P. No. 288 of 2011 .............................................. Dated this the 7th day of February, 2018 ## ORDER The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act, 1881. ## 2. Heard. 3. The learned counsel for the revision petitioner has submitted that the evidence of PW1 is not sufficient to prove the execution of Ext. P1 cheque and in the said circumstances, the conviction and sentence passed by the -: 2 :- Crl.R.P. No. 288 of 2011 courts below cannot be sustained. The learned counsel for the 2nd respondent, who is the complainant before the court below, on the other hand, has submitted that the evidence of PW1 is sufficient to prove the execution of Ext. P1 cheque. The learned counsel for the 2nd respondent also relied on the decision of the Apex Court in Beena v. Muniyappan [2001 KHC 832=AIR 2001 SC 2895] and argued that in complaints filed under Section 138 of the N.I.Act, the court has to presume that the cheque had been issued for a debt or liability and the burden of proving that a cheque was not issued for a debt or liability is on the accused. 4. The case of the complainant is that the revision petitioner borrowed an amount of Rs. 5,00,000/- from the complainant and towards the discharge of the said liability, -: 3 :- Crl.R.P. No. 288 of 2011 the revision petitioner executed and issued Ext. P1 cheque in favour of the complainant. The revision petitioner had a contention that the daughter of the revision petitioner, namely, Preethy, who committed suicide, had transaction with the complainant and during the course of the said transaction, the said Preethy had entrusted a blank signed cheque of the revision petitioner with the complainant and the said cheque had been misutilised by the complainant to file the present complaint. 5. In order to prove the execution of Ext. P1 cheque, the complainant got himself examined as PW1. PW1 stated that he did not see the revision petitioner writing or signing Ext. P1 cheque. PW1 clearly stated that the revision petitioner did not write anything in Ext. P1 cheque -: 4 :- Crl.R.P. No. 288 of 2011 in the presence of PW1. The revision petitioner also did not put the signature in Ext. P1 cheque in the presence of PW1. PW1 stated that at the time when Ext.P1 was brought to PW1, it was a signed cheque. PW1 further stated that PW1 was having records to show that the amount was lent by PW1 to the revision petitioner. However, no such record was produced by PW1 to show that there was outstanding due to PW1 from the revision petitioner. Eventhough the revision petitioner had a contention that a blank signed cheque handed over to PW1 by the daughter of the revision petitioner had been misused by PW1 to file the present complaint, the complainant did not incline to produce the account details of the revision petitioner maintained by the complainant to prove that the amount covered by Ext. P1 cheque was due to the -: 5 :- Crl.R.P. No. 288 of 2011 ## complainant from the revision petitioner. 6. The complainant did not adduce any evidence to prove the execution of Ext. P1 cheque by the revision petitioner. The facts of this case are different from the facts in Beena (supra). In that case, the accused did not adduce any evidence to show that the cheque in question was not issued in discharge of any debt or liability. In this case, on the side of the accused, DW1 was examined and Ext. D1 agreement was marked. The contention of the accused was that a blank signed cheque entrusted by the deceased daughter of the revision petitioner had been misutilised by the complainant to file the present complaint. PW1 did not see even the signing of the cheque by the revision petitioner. PW1 stated that the transaction was witnessed by his wife. -: 6 :- Crl.R.P. No. 288 of 2011 However, his wife was also not examined to prove the execution of Ext. P1 cheque by the revision petitioner. Having gone through the relevant inputs, I am of the view that the evidence of PW1 is not sufficient to prove the execution of Ext. P1 cheque by the revision petitioner as contemplated under Section 138 of the N.I.Act. In the said circumstances, it has to be held that the complainant failed to establish that the revision petitioner executed Ext. P1 cheque as contemplated under Section 138 of the N.I.Act. Consequently, the conviction and sentence passed by the courts below cannot be sustained. In the result, this Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 138 of the N.I.Act and the -: 7 :- Crl.R.P. No. 288 of 2011 revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged. Needless to state that if the revision petitioner had already deposited any amount before the trial court, pursuant to the direction of this court, the revision petitioner shall be entitled to reimbursement of the said amount from the trial court. Sd/- B. SUDHEENDRA KUMAR, JUDGE. ani/