V. Raveendran v. Sree Gokulam Chits and Finance Company Private Limited and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941** **Crl.Rev.Pet.No.229 OF 2010** **AGAINST THE JUDGMENT IN CRA 308/2008 DATED 31-10-2009 OF I ADDITIONAL SESSIONS COURT,PALAKKAD DIVISION** **AGAINST THE JUDGMENT IN ST 361/2006 DATED 28-04-2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,PALAKKAD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **V.RAVEENDRAN, S/O VELAYUDHAN, KUTHANUR POST, PALAKKAD.** **BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** - **1 SREE GOKULAM CHITS AND FINANCE COMPANY PVT LTD SREE GOKULAM TOWERS, NO.66,, ARCOT ROAD, KODAMBAKKOM, CHENNAI.** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.MAHESH V RAMAKRISHNAN R2 BY PUBLIC PROSECUTOR** ## **SR.PUBLIC PROSECUTOR-SRI. M.S.BREEZE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.229 OF 2010 2 ## **ORDER** **Dated this the 17th day of March 2020** Revision Petitioner is the accused in S.T. No.361/2006 of the Judicial First Class Magistrate-III, Palakkad and the appellant in Crl.Appeal No.308/2008 on the file of the Court of Sessions, Palakkad Division. 2. By the judgment dated 28.04.2008, the learned Judicial First Class Magistrate-III, Palakkad found the revision petitioner/accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I.Act), convicted and sentenced him to undergo simple imprisonment for one month and to pay compensation of Rs.34,787/- (Rupees thirty four thousand seven hundred and eighty seven only) under Section 357(3) of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C). 3. Aggrieved by the judgment of the trial court, accused preferred Crl.Appeal No.308/2008 before the Court of Sessions, Palakkad Division. By the judgment dated 31.10.2009, learned First Additional Sessions Judge, Palakkad Division, confirmed the conviction, modifying the sentence Crl.Rev.Pet.No.229 OF 2010 3 imposed by the trial court. The appellate court sentenced the accused to pay a fine of Rs.35,000/- and in default of payment of fine, to undergo simple imprisonment for one month. It is also directed to pay a sum of Rs.34,787/-, out of the fine recovered, to the complainant as compensation under Section 357(1) of Cr.P.C. Feeling aggrieved, the revision petitioner is before this Court. 4. Case of the complainant in brief is that, the accused issued Ext.P1 cheque for an amount of Rs.34,787/- dated 10.11.2005, to the complainant for a legally enforceable debt. The cheque, on presentation, through the Lord Krishna Bank, Palakkad branch, dishonoured for the reason ' _account closed'_ by virtue of Exts.P2 and P3 memos. The complainant issued Ext.P4 lawyer's notice, calling upon the accused to pay the amount covered under Ext.P1 within the statutory time. From Ext.P6 acknowledgment card, it is evident that the accused received Ext.P4 notice on 02.12.2005. However, even after receipt of the notice, he did not pay the amount covered under Ext.P1 cheque or did he send any reply to the notice issued. Hence the complaint. Crl.Rev.Pet.No.229 OF 2010 4 5. Complainant is M/s. Sree Gokulam Chits and Finance Company Private Limited. PW1, the Manager of M/s. Sree Gokulam Chits and Finance was examined before the court on the strength of Ext.P7 resolution issued by the Company. According to him, an amount of Rs.34,787/- was due to the company by virtue of Ext.P1 cheque, which was not paid despite several requests and statutory notice issued as per Ext.P4. Ext.P1 cheque was dishonoured for the reason ' _account closed_ '. 6. Learned counsel for the revision petitioner contended that the as the cheque was dishonoured for the reason ' _account closed_ ', the offence under Section 138 of the N.I. Act is not be attracted. Merely because Ext.P1 was dishonoured for the reason ' _account closed'_ , it could not be said that the offence under Section 138 of the N.I. Act is not attracted. Even if the account is closed by the accused, still, the offence under Section 138 is attracted. Both the trial court and the appellate court concurrently entered a finding that Ext.P1 cheque was issued for a legally enforceable debt and that the accused failed to repay the amount covered under Ext.P1 cheque within the statutory time. The trial court as Crl.Rev.Pet.No.229 OF 2010 5 well as the appellate court applied the presumption of consideration in terms of the provisions under Sections 118 and 139 of the N.I. Act. Under the circumstances, the onus, certainly shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability. 7. When the complainant was cross examined, Ext.D1 passbook was shown to the complainant. PW1 admitted the entries therein as that of the complainant company. It is the case of the accused that the cheque was given as security and the same was filled up and presented behind the back of the accused. It is also contended that the amount covered Ext.D1 does not tally with the amount covered under Ext.P1 cheque. ## 8. In **Bir Singh V. Mukesh Kumar** [(2019) 4 SCC ## 197], the Apex Court held as follows:- _''Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence_ Crl.Rev.Pet.No.229 OF 2010 6 _showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16; 2001 SCC (Cri)960].''_ 9. Judged by the above standards, this is a case where the accused failed to adduce evidence before the trial court to rebut the presumption contemplated under section 139 of the N.I. Act. It is settled principle of law that 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 N.I. Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. There is nothing on record to show that petitioner being a Company, engaged in chitty transaction, is extracting exorbitant interest from the accused as contended by the learned counsel for the accused. 10. So far as the question of signature contained in Ext.P1 cheque is concerned, there is no denial as such. Going by the entire evidence, it is difficult for this Court to enter a finding that the conclusion arrived at by the trial court as confirmed by the appellate court are perverse. Crl.Rev.Pet.No.229 OF 2010 7 11. The dispute regarding the actual amount due to the complainant from the accused on account of discrepancy in Exts.D1 passbook and P1 cheque alleged is not a ground to rebut the presumption contemplated under Sections 118 and 139 of the N.I.Act. The accused failed to establish a probable defence so as to rebut such presumption contemplated under law. Once a cheque is issued, no doubt, it carries statutory presumption of consideration. The _onus_ is on the accused to disprove the presumption. That presumption has not been rebutted. This being the fundamental law relating to prosecution under section 138 of the N.I.Act, this court is of the view that the both the trial court and the appellate court concurrently found that the accused executed Ext.P1 cheque for a legally enforceable debt and that the accused failed to discharge the amount covered under Ext.P1 cheque , despite receipt of statutory notice and interference in revision is not warranted. 12. Having taken into consideration of the fact that the appellate court directed to deposit the fine amount of Rs.34,787/- to the complainant and in case of default to pay the fine amount to undergo simple imprisonment for one Crl.Rev.Pet.No.229 OF 2010 8 month and the fine amount if deposited shall be disbursed to the complainant under Section 357(1) Cr.P.C. Hence, no interference in the matter of sentence is required. However, considering the facts and circumstances of the case, it is just and proper to grant four months time to the revision petitioner to deposit the amount before the trial court from today. The revision petition stands dismissed. Sd/- N.ANIL KUMAR JUDGE ajt