T.K. Mathai v. Gokulam Chits and Finance Co. (P) Ltd. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** ## **Crl.Rev.Pet.No.321 OF 2020** **AGAINST THE JUDGMENT IN CRA 295/2018 DATED 23-01-2020 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **AGAINST THE JUDGMENT IN CC 833/2015 DATED 17-08-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THAMARASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **T.K.MATHAI, AGED 57 YEARS S/O.T.J.KURIEN, THEKKEKKARA HOUSE, THIRUVAMBADY, KOZHIKODE, PIN - 673 603.** ## **BY ADV. SRI.DENU JOSEPH** ## **RESPONDENTS/RESPONDENT/COMPLAINANT & STATE:** **1 GOKULAM CHITS AND FINANCE CO. (P) LTD., NO.66, ARCOT ROAD, CHENNAI - 24.** **2 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **OTHER PRESENT:** ## **SRI.C.K.PRASAD, PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16.03.2020, THE COURT ON 18.03.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.321 OF 2020** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.321 of 2020 --------------------------------------------Dated this the 18[th] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.833/2015 on the file of the Court of the Judicial First Class Magistrate-I, Thamarassery. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced the petitioner to undergo simple imprisonment for a period of three months and to pay a fine of Rs.6,13,700/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. **Crl.Rev.Pet.No.321 OF 2020** **3** 3. The petitioner filed Crl.Appeal No.295/2018 before the Court of Session, Kozhikode challenging the order of conviction and the sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner under Section 138 of the Act but set aside the substantive sentence of imprisonment imposed on him by the trial court and maintained the sentence of fine imposed on him. 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant is a company conducting chitty business. The accused had subscribed to two chitties conducted by the complainant company during the period from 14.1.2012 to 14.1.2014. The accused auctioned both chitties and received the chitty amount. He subsequently made default in payment of the instalments of the chitties. On termination of the chitties, there was outstanding liability from the accused to the complainant company. When the complainant demanded the accused to settle the liability, the accused came to the Zonal Office of the **Crl.Rev.Pet.No.321 OF 2020** **4** complainant company and executed and issued a cheque dated 17.1.2015 for Rs.6,13,700/- towards the amount due from him to the complainant company. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount of the cheque. 7. During the trial of the case, the Assistant Manager of the complainant company, who was authorised by the company to prosecute the case against the accused, was examined as PW1 and Exts.P1 to P10 documents were also marked on the side of the complainant. No evidence was adduced by the accused. 8. The extract of the minutes of the meeting of the Board of Directors of the complainant company, authorising PW1 to conduct the prosecution against the accused, was marked as Ext.P1. At the time of the hearing of the revision petition, learned counsel for the petitioner has not challenged the competency of PW1 to represent the complainant company and to give evidence on behalf of the company. 9. PW1 gave evidence that the accused had subscribed to two chitties conducted by the complainant company. He also gave **Crl.Rev.Pet.No.321 OF 2020** **5** evidence that the accused executed and issued Ext.P2 cheque for Rs.6,13,700/- in discharge of the amount due from him to the complainant company in the chitty transaction. In examination-inchief as well as in cross examination, PW1 has stated that the accused signed Ext.P2 cheque in front of him. 10. The accused does not dispute the fact that Ext.P2 cheque bears his signature. The evidence of PW1, as mentioned above, coupled with the admission of the accused that the cheque bears his signature, is sufficient to prove the execution of the cheque by the accused. 11. Once execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption under Section 139 of the Act. The accused did not adduce any evidence to rebut the presumption. Nothing was also brought out in the cross examination of PW1 which would enable the accused to rebut the presumption under Section 139 of the Act. 12. The plea of the accused is that he had given a signed blank cheque as security at the time of an earlier chitty transaction with the complainant company and that the complainant has misused the aforesaid cheque and filed the case. No evidence was adduced by the **Crl.Rev.Pet.No.321 OF 2020** **6** accused to prove this plea. 13. Learned counsel for the revision petitioner contended that the complainant did not produce any documents to prove the chitty transaction. There is no merit in this contention. Exts.P9 and P10 agreements were produced and marked by the complainant to prove that the accused had subscribed to the chitties conducted by the company and he had received the chitty amount. The ledger extracts in respect of the two chitty transactions were also produced and marked as Exts.P7 and P8 to prove the amount due from the accused to the complainant company. 14. The complainant had sent the statutory notice to the accused demanding payment of the amount of the cheque. The accused has no case that he did not receive the notice. He did not send any reply. If as a matter of fact, an amount of Rs.6,13,700/was not due from him to the complainant company in the chitty transaction and if he had not issued Ext.P2 cheque for that amount in discharge of such liability, the accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving the notice from the complainant company demanding an amount of Rs.6,13,700/- and threatening legal action, in case of non-payment of the amount. The very fact that the accused **Crl.Rev.Pet.No.321 OF 2020** **7** did not send any reply to the statutory notice leads to the inference that the case of the complainant is true (See **Rangappa v. Mohan: AIR 2010 SC 1898)** . 15. Learned counsel for the revision petitioner contended that the complainant has not disclosed the details of the chitty transaction such as details of subscribers, the number of the tickets subscribed by each subscriber, the date of commencement and duration of the chitty etc., in the complaint. Such particulars are not required to be stated in a complaint for an offence punishable under Section 138 of the Act. What is required to be stated in a complaint for an offence under Section 138 of the Act is only the essential facts constituting the ingredients of that offence. The complaint need not contain pleadings as if in a plaint in a suit. ## 16. Very recently, in **APS Forex Services Pvt Ltd v. Shakti International Fashion Linkers : 2020 (2) KLT 21(SC)** , the Apex Court has held as follows: “Once the accused has admitted the issuance of cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to **Crl.Rev.Pet.No.321 OF 2020** **8** rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid”. 17. The complainant is not required to prove the debt or liability as in a civil case (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287** ). The complainant has no obligation to prove the original consideration or transaction unless and until the accused rebuts the presumption under Section 139 of the Act (See **Devan v. Krishna Menon : 2010 (2) KLT 397** ). 18. Absence of averments in the complaint regarding the details of the original transaction do not adversely affect the case of the complainant, especially when the accused has adduced no evidence to prove his plea and to rebut the presumption under Section 139 of the Act (See **Shree Daneshwari Traders v. Sanjay Jain : AIR 2019 SC 4003** ). 19. Learned counsel for the revision petitioner also contended that the complainant did not produce any documents to show that the chitty conducted by the complainant company was registered under the Chit Funds Act or the Kerala Chitties Act and that the complainant had obtained sanction to conduct the chitty business. No such documents are required to be produced in a prosecution for an offence under Section 138 of the Act. Even if it is assumed that the chitty **Crl.Rev.Pet.No.321 OF 2020** **9** conducted by the complainant company is not a registered one, it does not in any way affect the prosecution against the accused for an offence punishable under Section 138 of the Act. 20. A chitty transaction conducted without obtaining the sanction from the Government or without obtaining registration under the statute cannot be characterised as a transaction opposed to public policy or illegal or unlawful. Prosecution on the basis of a cheque, which was issued in discharge of a liability in such transaction, is maintainable (See **Nadarajan v. Nadarajan : 1999 (2) KLT 512** ). 21. The trial court as well as the appellate court has appreciated the evidence in the correct perspective and reached the right conclusion. I find no illegality or impropriety or perversity in the appreciation of evidence by the courts below or the concurrent findings made against the petitioner. 22. The courts below have appreciated the evidence and made concurrent findings. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to gross miscarriage of justice. The revisional **Crl.Rev.Pet.No.321 OF 2020** **10** court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 23. The appellate court, though not specifically set aside the substantive sentence of imprisonment imposed on the petitioner/accused, modified the sentence and confined the sentence imposed on him by the trial court to a sentence of fine which is equal to the amount of the cheque. There is also no sufficient ground to interfere with the sentence awarded on the petitioner/accused. 24. Consequently, the revision petition is dismissed. Conviction of the petitioner/accused for the offence punishable under Section 138 of the Act by the trial court, which stands affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the appellate court is also confirmed. However, **Crl.Rev.Pet.No.321 OF 2020** **11** the petitioner/accused is granted a period of six months from today to remit the fine amount in the trial court. **Sd/-** **R.NARAYANA PISHARADI, JUDGE** al/-