High Court of KeralaSingle Judge2018-10-16Revision petition dismissed; eleven months to p...

V. Santhakumari w/o Sukumaran v. K.J. John Singh and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 1157 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-10-16
Court Decision / Holding: Revision petition dismissed. The petitioner is granted eleven months to pay the compensation.
Final Disposition: Revision petition dismissed; eleven months to pay compensation

Parties to the Case

Appellants / Petitioners

V. Santhakumari w/o Sukumaran

Respondents

K.J. John Singh
State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• SRI.BABY MATHEW

Counsels for Respondents

• SRI.A.S.BENOY
• SRI.C.ANILKUMAR (KALLESSERIL)
• SRI.C.Y.VINOD KUMAR
• SRI.E C BINEESH (Public Prosecutor)

Case Synopsis & Summary

V. Santhakumari, the revision petitioner, challenges a conviction under Section 138 of the Negotiable Instruments Act for issuing a cheque allegedly to secure a Gulf job visa for the complainant’s wife. The history shows that the complainant, on the representation of the petitioner and her husband, allegedly advanced Rs 5,00,000 and the cheque Ext.P1 was issued by the petitioner and her husband together, though Ext.P1 was drawn on the petitioner’s account alone. The trial court convicted, and the appellate court upheld, while the High Court quashed the husband’s proceedings but did not set aside the petitioner’s conviction, holding that a presumption under Section 139 NI Act arose on admission of the cheque and signature, and that the accused failed to rebut it credibly. The petitioner contends that the transaction’s nature was not described in the complaint or notice, making the conviction unsustainable; she also questions the plausibility of lending such a sum to a housewife and asserts the cheque may have been stolen. The complainant relies on evidence showing the loan-like transaction and the joint liability of the petitioner and her husband; jurisprudence cited includes Devan v. Krishna Menon, Rangappa v. Mohan, Sampelly Satyanarayana Rao, and T. P. Murugan, emphasizing that rebuttal of the presumption requires credible evidence. The Court ultimately finds no merit in the revision and dismisses the petition, granting eleven months to pay compensation.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 139 of the Negotiable Instruments Act

Legal Doctrines & Maxims

Presumption of a legally enforceable debt under Section 139 NI Act when cheque and signature are admitted; burden on the accused to rebut; rebuttal must be by credible evidence; mere denial is not enough to discharge presumption; real nature of transaction can influence burdens under NI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner argued that the transaction’s nature was not stated in the complaint or in the notice, and that such omission undermines the validity of the conviction under Section 138 NI Act. It is argued that it is improbable that the complainant would have lent Rs.5,00,000 to a housewife; the assertion that the cheque was stolen by the complainant is unsupported by evidence; hence, the conviction and sentence cannot be sustained. The reliance on jurisprudence suggesting the necessity of clear transaction details to discharge the presumption is emphasized.

Contentions of Respondents

The complainant contends that the evidence convincingly shows a money-lending-like transaction for visa arrangements and that the petitioner and her husband jointly collected Rs.5,00,000. Ext.P1 is issued by them jointly, with the cheque signed by the petitioner and the husband; the signature is admitted. The presumption under Section 139 NI Act applies, and the burden shifts to the accused to rebut with credible evidence. The trial and appellate courts’ findings deserve deference; no material suggests perverse appreciation of evidence.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Devan v. Krishna Menon	2010 (2) KLT 397	Positive	Division Bench held that if the real nature of the transaction is clear from the complainant’s evidence, failure to mention it in the complaint or notice does not discharge the burden under Section 139 NI Act.
Rangappa v. Sri Mohan	2010 (2) KLT 682	Positive	Established that once cheque issuance and signature are admitted, there is a presumption of a legally enforceable debt; the accused must rebut with credible evidence; mere denial is insufficient.
Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd.	2016 (4) KLT 24	Positive	Followed Rangappa; supports that presumption stands and needs credible rebuttal.
T. P. Murugan (dead) through Legal Representatives v. Bojan	2018 (8) SCC 469	Positive	Held that rebuttal of the presumption must be by credible evidence; mere doubt does not discharge the presumption.

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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** **TUESDAY,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940** ## **Crl.Rev.Pet.No. 1157 of 2014** **AGAINST THE ORDER/JUDGMENT IN ST 2557/2009 of J.M.F.C.,ALATHUR DATED 25-04-2012** **AGAINST THE ORDER/JUDGMENT IN CRA 228/2012 of ADDL. SESSIONS COURT - V, PALAKKAD DATED 20-09-2013** ## **REVISION PETITIONER/S:** **V.SANTHAKUMARI W/O.SUKUMARAN, RESIDING AT PADIKKAL HOUSE, CHITTALAMCHERRY POST, MELARKODE VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.BABY MATHEW** ## **RESPONDENT/S:** **1 K.J.JOHN SINGH AGED 50 YEARS S/O.K.U.JOHN, RESIDING AT KARAVATHU APPAZHAKKATTU HOUSE, CHAPPALAKUDI, P.O.ENAKKODE, NOW AT KABEER TERRACE, C/O.KABEER AHAMMED, MORAL P.O., VIA KUMBALA. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SRI.A.S.BENOY SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR** ## **OTHER PRESENT:** ## **SRI. E C BINEESH-PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 1157 of 2014** ## **O R D E R** The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act. (for short 'the N.I Act') ## 2. Heard. 3. The learned counsel for the revision petitioner has submitted that the nature of the transaction was not stated in the complaint or in the notice and in the said circumstances, the conviction and sentence passed against the revision petitioner cannot be sustained. The learned counsel for the revision petitioner has further submitted that it is not believable that the complainant would advance the amount covered by Ext.P1 cheque to a house-wife like ## **Crl.Rev.Pet.No. 1157 of 2014** **==> picture [220 x 9] intentionally omitted <==** the revision petitioner and in the said circumstances also, the conviction and sentence passed by the courts below cannot be sustained. It has been further submitted by the learned counsel for the revision petitioner that since the cheque in question was stolen by the complainant from the revision petitioner, the conviction and sentence passed by the courts below cannot be sustained. 4. The contention of the complainant is that the revision petitioner, along with her husband, offered a job visa in Gulf country to the wife of the complainant, who is a Dental Doctor having BDS qualification. She was running a Clinic at Kalladikkode, Palakkad. Believing the representation of the revision petitioner and her husband, the complainant advanced an amount of Rs.5,00,000/- to ## **Crl.Rev.Pet.No. 1157 of 2014** the revision petitioner. However, the visa, as agreed was not provided. Therefore, the complainant demanded back the amount with interest. Then the cheque in question was issued by the revision petitioner and her husband together. 5. In this case, the evidence of the complainant in his examination-in-chief and cross-examination would clearly prove the nature of transactions. The Division Bench in Devan v. Krishna Menon [2010 (2) KLT 397] held that if the real nature of transaction is clear from the evidence of the complainant, if at all the nature of transaction is not mentioned in the complaint or in the notice, it cannot be said that the burden on the accused under Section 139 of the N.I. Act has been discharged. In this case, the evidence of PW1 would clearly prove the ## **Crl.Rev.Pet.No. 1157 of 2014** -5- transaction involved in this case. In the said circumstances, the submission advanced by the learned counsel for the revision petitioner in this regard cannot be accepted. 6. It is clear from the evidence of PW1 that the revision petitioner and her husband together collected Rs.5,00,000/- from the complainant, promising that a job visa for working abroad would be arranged for the wife of the complainant. It is also clear from the evidence of PW1 that the money was received from the complainant by the revision petitioner and her husband together. The cheque was also issued by the revision petitioner and her husband together. However, Ext.P1 was drawn from the account maintained by the revision petitioner alone. Therefore, the proceedings against the husband of the revision petitioner ## **Crl.Rev.Pet.No. 1157 of 2014** -6- under Section 138 of the N.I. Act were quashed by the High Court. Since the evidence would clearly show that the money was collected by the revision petitioner and her husband together for arranging a job visa, there is no merit in the submission of the learned counsel for the revision petitioner that it was not believable that the complainant would advance Rs.5,00,000/- to a house-wife like the revision petitioner. For the said reason, the submission advanced by the learned counsel for the revision petitioner in this regard, cannot be accepted. 7. Eventhough the revision petitioner had a contention that the cheque in question was stolen by PW1, there is no evidence before the court to indicate that the said contention is probable. There is also no material to ## **Crl.Rev.Pet.No. 1157 of 2014** -7- show that the revision petitioner had lodged any complaint in this regard before any authority. The signature in Ext.P1 cheque is admitted by the revision petitioner. In the absence of any material to show that the cheque in question was stolen by PW1, the submission of the learned counsel for the revision petitioner in this regard cannot be accepted. 8. The Apex Court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. [2016(4) KLT 24] followed the decision of the Apex Court in Rangappa v. Sri Mohan [2010 (2) KLT 682] and held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises and it is for the accused to rebut the said presumption. It was further held ## **Crl.Rev.Pet.No. 1157 of 2014** **==> picture [220 x 9] intentionally omitted <==** by the Apex Court that the mere statement of the accused may not be sufficient to rebut the presumption. The Apex Court in T P Murugan (dead) through Legal Representatives v. Bojan [(2018) 8 SCC 469] held that the rebuttal of the presumption under Section 139 of the N.I. Act must be by adducing credible evidence and mere raising of doubt sans cogent evidence, cannot discharge the **.** presumption under Section 139 of the N.I. Act 9. In this case, the evidence of PW1 and PW2 would clearly prove the execution and issuance of Ext.P1 cheque by the ## **Crl.Rev.Pet.No. 1157 of 2014** -9- revision petitioner. The signature in the cheque has been admitted by the revision petitioner. Therefore, the presumption under Section 139 of the N.I. Act is available in favour of the complainant. There is absolutely no material before the court to rebut the said presumption. Having gone through the relevant inputs, I am satisfied that the courts below correctly appreciated the oral and documentary evidence and concurrently found that the revision executed Ext.P1 as petitioner cheque contemplated under Section 138 of the N.I. Act and committed the offence under Section 138 of the N.I. Act, rejecting the contentions of the revision petitioner. No material is available before the court to indicate that the appreciation of evidence or the concurrent finding of ## **Crl.Rev.Pet.No. 1157 of 2014** -10- conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding of conviction by the courts below under Section 138 of the N.I. Act, does not warrant any interference by this court. 10. The sentence awarded by the appellate court also does not warrant any interference by this court. In the result, this revision petition stands dismissed. However, the revision petitioner is granted eleven months to pay the compensation. Dated this the 16[th] day of October 2018. sd **B. SUDHEENDRA KUMAR, JUDGE** . dl/ // True copy // PA to Judge