UMA RASHEED @ THANKAMONY v. REMA ANI and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 9TH DAY OF SEPTEMBER 2020/18TH BHADRA, 1942** ## **Crl.Rev.Pet.No.2506 OF 2010** **CRA 298/2008 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA** **CC 164/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, RANNI** ## **REVISION PETITIONER/S:** **UMA RASHEED @ THANKAMONY HOUSE NO.13, UPASANA NAGAR, KURAVANPALAM, KOLLAM.** **BY ADV. SRI.M.T.SURESH KUMAR** ## **RESPONDENT/S:** **1 REMA ANI, KUTTIMURUPPEL VEEDU KUMBALAM POIKA, PATHANAMTHITTA.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.SAJJU.S R1 BY ADV. SRI. K.SHAJ** ## **OTHER PRESENT:** **SR.PP. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRRP No.2506/2010 ..2.. ## **ORDER** Dated this the 9[th] day of September, 2020 This revision petition is directed against the judgment dated 27.05.2010 rendered by the Additional Sessions Judge (Adhoc) Fast Track Court-II, Pathanamthitta in Crl. Appeal No. 298 of 2008, which arose from the judgment dated 13.11.2008 rendered by the learned Judicial First Class Magistrate Court-II, Ranny in CC No. 164 of 2008, convicting and sentencing the accused under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “NI Act”). The case of the 1[st] respondent/complainant (hereinafter referred to as, “complainant”) is that the revision petitioner/accused (hereinafter referred to as, “accused”), who availed a loan of Rs.2,50,000/- for a legally CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** enforceable debt, issued Ext.P1 cheque for an amount of Rs.2,50,000/- to the complainant. When the complainant presented Ext.P1 cheque bearing No.140216 dated 28.09.2005 drawn on the Kollam District Co-operative Bank, Kollam Branch for collection through the State Bank of Tranvancore, Vadasserikkara Branch, it was returned unpaid with the endorsement “Funds Insufficient”. Upon receipt of the intimation from the bank on 17.10.2005, the complainant issued Ext.P4 legal notice to the accused through her advocate calling upon her to pay the cheque amount within the statutory time. The accused accepted the notice on 26.10.2005. However, she did not reply to the notice nor did she pay the cheque amount to the complainant as demanded. 2. The complainant filed a criminal complaint under Section 138 of the NI Act before the trial court. Upon consideration of the CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** complaint and documents, the learned magistrate took cognizance of the offence under Section 138 of the NI Act and the case was taken on file as CC No. 164 of 2008. 3. On service of summons, the accused entered appearance before the trial court. Particulars of the offence were read over and explained to the accused, to which she pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P6. After the witness for the complainant had been examined and before the accused was called on for her defence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure (hereinafter referred to as, “Cr.P.C.”) for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against her. She denied the entire transaction and stated that the complainant and herself are family friends. According to her, she was in CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** need of Rs.2,00,000/- to purchase the family share of the complainant's husband's sister, she was running short of Rs.1,60,000/- and the sister-in-law of the complainant agreed to accept a cheque as security for the deficit amount and owing to the request of the complainant, the accused had handed over a blank cheque purely as security to the complainant for handing over the same to her sister-in-law. In order to substantiate this aspect, Ext.D1 stop memo issued by the complainant to the bank manager was also produced. The sum and substance of her contention is that the antecedent transaction alleged by the complainant is false and the blank signed cheque has been with the complainant purely as security for another transaction. 4. On appreciation of the entire evidence on record, the learned magistrate observed that CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** execution of Ext.P1 cheque was proved by the complainant and that the cheque was dishonoured on account of insufficient funds. 5. Heard Sri.M.T. Suresh Kumar, the learned - counsel for the review petitioner; Sri.M.S.Breez, the learned Senior Public Prosecutor and the learned counsel for the 1[st] respondent. 6. In order to determine the question as to whether the offence punishable under Section 138 of the NI Act is made out against the accused, it is necessary to analyse the penal provision contemplated under Section 138 of the NIT Act. In this context, it is relevant to note the presumptions to be raised as envisaged under Sections 118 and 139 of the NI Act. Section 118 of the NI Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** 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 NI 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 endorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the NI 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 NI 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 CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** Sections 118 and 139 of the NI Act, it is clear that in a trial under Section 138 of the NI Act, a presumption follows 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 in evidence. 7. It goes without saying 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 NI Act are very much available to the complainant and the burden shifts on the accused. However, as rightly contended by the learned counsel for the revision petitioner, this presumption is rebuttable. In the above circumstances, it is the duty of the accused before the court, by adducing evidence, to show that the cheque was not CRRP No.2506/2010 **==> picture [31 x 8] intentionally omitted <==** supported by consideration and that there was no debt or liability to be discharged as alleged. In doing so, 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 onus of proof shifts back to the complainant. 8. The definite case of the accused is that she has issued Ext.P1 cheque to the complainant as a substitute for another cheque, which has been lost from the complainant. The earlier cheque was issued to the complainant's sister-in-law to purchase her family share. However, in cross-examination, the defence version was denied by the complainant and stated that the accused had borrowed some amount and gold from her and for the repayment of the said loan amount, she issued cheque in CRRP No.2506/2010 ..10.. the name of the complainant. It is further stated that the said cheque had been lost while she was travelling to the bank. Accordingly, she requested the complainant to issue Ext.D1 stop memo to the bank. On going through the evidence, it is clear that the alleged loan transaction before September, 2003 between the accused and the complainant was not challenged during cross-examination. The definite version of the complainant is that the said amount and gold borrowed by the accused was returned before September. In this context, the date of issuance of Ext.D1 is material. Ext.D1 is seen issued in March, 2003. The date of issuance of Ext.D1 coupled with the unchallenged version of the complainant that the amount borrowed by the accused was returned before September, 2003 would show that the complainant's version before the trial court is more probable. That CRRP No.2506/2010 **==> picture [37 x 8] intentionally omitted <==** apart, merely because there existed an antecedent transaction between the parties, the same itself cannot be treated as a bar for a different transaction at the volition of the parties. This is more probable for the reason that the parties have been friends for a long period of time. The law does not prohibit different money transactions between the same parties during a particular period. The trial court as well as the appellate court concurrently accepted the version of the complainant and entered a finding that Ext.P1 cheque was issued for a legally enforceable debt. 9. It is well settled law that revision against conviction and sentence 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 CRRP No.2506/2010 **==> picture [37 x 8] intentionally omitted <==** 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 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 Sections 118 and 139 of the NI Act. In the case at hand, the accused has no case that she has issued the cheque under threat or coercion on the part of the complainant. That apart, the accused has no case that the alleged unfilled cheque for security 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. Ext.D1 stop memo is not sufficient to rebut the presumptions contemplated under Sections 118 and 139 of the NI Act. 10.In **Bir Singh** v. **Mukesh Kumar** [(2019) 4 SCC CRRP No.2506/2010 **==> picture [37 x 8] intentionally omitted <==** 197], the Hon'ble Supreme Court held that in view of Section 139 of the NI Act read with Section 118 of the NI 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 are extracted below for convenience of reference; “39. It is not the case of the respondentaccused 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.” 11.In view of the above, this Court is of the view that Ext.P1 cheque bears consideration CRRP No.2506/2010 **==> picture [37 x 8] intentionally omitted <==** and the accused was liable to pay the amount to the complainant for a legally enforceable debt. 12.The trial court convicted and sentenced the accused to undergo simple imprisonment for six months and to pay a compensation of Rs.2,50,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default to undergo simple imprisonment for three months more. In appeal, the appellate court dismissed the appeal confirming the conviction and sentence imposed by the trial court. 13.Having considered the facts and circumstances of the case, this Court is of the view that the sentence imposed by the trial court as confirmed by the appellate court is against the doctrine of proportionality. It is not necessary to sentence the accused for six months in a case relating to an offence under Section 138 of the NI Act. The object of the CRRP No.2506/2010 **==> picture [37 x 8] intentionally omitted <==** Act is to compel the accused to pay the amount and infuse credibility in banking transactions. Hence, the sentence is liable to be modified. In the result, this Crl.R.P. 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.2,50,000/- (Rupees two lakhs and fifty thousand only). In view of the Covid-19 pandemic and the resultant financial crunch, the fine amount shall be deposited in the trial court within nine months from today, failing which the accused shall undergo rigorous imprisonment for a period of four months. If the fine 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 CRRP No.2506/2010 **==> picture [37 x 8] intentionally omitted <==** 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 herein above. **Sd/-** ## **N.ANIL KUMAR** **JUDGE** Bka/09.09.2020