T.G. Mani v. M/s K and V Metal Crushing Industries & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020/15TH KARTHIKA, 1942** ## **Crl.Rev.Pet.No.1116 OF 2011** **AGAINST THE JUDGMENT IN CRL.APPEAL No.604/2009 DATED 23-02-2011 OF FIRST ADDITIONAL SESSIONS COURT, THRISSUR** **ST 5227/05 DATED 27-07-2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THRISSUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **T.G.MANI, S/O.GOVINDAN, NENMANATH PARAMBIL HOUSE, CHELAKKARA DESOM, THRISSUR DISTRICT.** **BY ADV. SRI.K.A.SATHEESA BABU** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 M/S.K AND V METAL CRUSHING INDUSTRIES, ATTOOR P.O., THRISSUR DISTRICT, REPRESENTED BY MANAGING PARTNER, GOPI, MOOTHEDATH HOUSE, HARI NAGAR, POONKUNNAM, THRISSUR. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV.SRI.M.B.PRAJITH R2 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-11-2020, THE COURT ON 06-11-2020 PASSED THE FOLLOWING:** Crl.R.P.No.1116 of 2011 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** Dated this the 06[th] day of November, 2020 This criminal revision petition is directed against the judgment dated 23.2.2011 rendered by the first Additional Sessions Judge, Thrissur in Crl.Appeal No.604/2009 whereby the learned first Additional Sessions Judge allowed the appeal in part by sustaining the conviction under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act') and modifying the sentence to imprisonment till the rising of the court and a compensation of Rs.75,000/-, in default of payment of compensation to undergo simple imprisonment for a period of one month more. 2. The revision petitioner was the accused in S.T.No.5227/2005 on the file of the Judicial First Class Magistrate Court-I, Thrissur and the appellant in Crl.R.P.No.1116 of 2011 **==> picture [22 x 8] intentionally omitted <==** Crl.Appeal No.604/2009. The 1[st] respondent/complainant, M/s.K and V Metal Crushing Industries represented by its Managing Partner filed a complaint under Section 138 of the N.I.Act 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 S.T.No.5227/2005. 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 metal from the complainant firm for a total sum of Rs.1,02,825/- on credit basis and issued three cheques dated 31.3.2004, 30.4.2004 and 30.5.2004 Crl.R.P.No.1116 of 2011 **==> picture [22 x 8] intentionally omitted <==** respectively in partial discharge of the total amount outstanding in the account for an amount of Rs.75,000/(Rs.25,000/- each). The complainant presented the cheques for encashment through the Punjab National Bank, Thrissur but the cheques were returned unpaid with the endorsement 'funds insufficient'. Statutory notice was issued on 12.7.2004 to the accused calling upon him to pay the amount. The accused received the notice on 16.7.2004. He sent a reply notice on 05.08.2004 raising contentions. 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 the complainant was examined as PW1 and marked Exts.P1 to P13. After the witness for the complainant had been examined, the accused was questioned under Section 313(1)(b) of the Crl.R.P.No.1116 of 2011 ..5.. Cr.P.C. for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the circumstances. He was examined himself as DW1 and marked Ext.D1. 5. On appreciation of the evidence, the learned Magistrate held that the execution of the cheques was admitted by the accused and that it was proved by the complainant that the cheques were dishonoured for the reason 'insufficient fund'. Hence the learned Magistrate concluded that the cheques were issued by the accused for the discharge of debt or liability. 6. Heard the learned Amicus Curiae appointed by this Court for the revision petitioner and learned Senior Public Prosecutor for the State. 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 Crl.R.P.No.1116 of 2011 ..6.. Penal provision of Section 138 of the Act and the 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 Crl.R.P.No.1116 of 2011 **==> picture [22 x 8] intentionally omitted <==** nature referred to in Section 138 of the 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 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 Crl.R.P.No.1116 of 2011 **==> picture [22 x 8] intentionally omitted <==** 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. 8. The present Managing Partner of the firm was examined as PW1. He adduced evidence to show that the complainant is a partnership firm and he is the present Managing Partner of the firm. According to him, the accused had dealings with the firm from 1999 to 2004 and in the said transaction, an amount of Rs.1,02,825/- was due to the firm. Towards partial discharge of the liability, according to him, the accused issued Exts.P1 to P3 cheques in favour of the firm for a total sum of Crl.R.P.No.1116 of 2011 ..9.. Rs.75,000/- (Rs.25,000/- each). The firm was later reconstituted on 1.4.2004 and the liability of the firm was taken over by the new partnership. He also stated that on 17.4.2004, the accused had paid an amount of Rs.25,000/- to the Managing Partner of the old firm and he acknowledged the same. Thereafter, the complainant presented the above cheques for encashment through the Punjab National Bank, Thrissur and all the cheques were dishonoured for the reason 'insufficient fund' by way of Exts.P4 to P6. Thereupon Ext.P8 demand notice was issued and the accused received the notice and sent Ext.P11 reply. Ext.P12 is the partnership deed and Ext.P13 is the resolution. 9. The main contention raised by the accused is that he had purchased metal from M/s.K and V Metal Crushing Industries for an amount of Rs.50,000/- and for that he had paid Rs.25,000/- to the firm and obtained Crl.R.P.No.1116 of 2011 **==> picture [28 x 8] intentionally omitted <==** Ext.D1 endorsement on the reverse side of the cheque. He denied the liability. In cross-examination, DW1 admitted that Ext.D1 endorsement was made by the complainant to the effect that an amount of Rs.25,000/- was received from the accused out of the total amount of Rs.1,02,825/due to the complainant, firm. Hence, Ext.D1 is not an evidence to disprove the transactions covered under Exts.P1 to P3. 10. It is well settled law that when concurrent findings of facts rendered by the trial court and appellate court are sought to be 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 Crl.R.P.No.1116 of 2011 **==> picture [28 x 8] intentionally omitted <==** 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 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_ Crl.R.P.No.1116 of 2011 **==> picture [28 x 8] intentionally omitted <==** _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.”_ 11. 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 Section 118 and 139 of the N.I.Act. The burden is not discharged rightly. Hence, the conviction of the accused for the offence under Section 138 of the N.I.Act is only to be upheld. 12. Coming to the question of sentence, the learned Amicus Curiae submitted that the accused is now 75 years old. Having considered the age of the accused, the sentence is modified to one of fine. Crl.R.P.No.1116 of 2011 **==> picture [28 x 8] intentionally omitted <==** 13. 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.75,000/- (Rupees Seventy five thousand only) and in default of payment of fine to undergo simple imprisonment for a period of two months. In view of the Covid-19 Pandemic and the resultant financial crunch, 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 shall be disbursed to the complainant as compensation in accordance with rules. Crl.R.P.No.1116 of 2011 **==> picture [28 x 8] intentionally omitted <==** Registry is directed to send back the records to the trial court for execution of sentence. Sd/- **N.ANIL KUMAR, JUDGE** skj