V. Thomas v. M. Anilkumar and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945** **CRL.REV.PET NO. 256 OF 2023** **AGAINST THE ORDER/JUDGMENTCC 362/2019 OF CHIEF JUDICIAL** **MAGISTRATE, ALAPPUZHA CRA 64/2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, ALAPPUZHA / II ADDITIONAL MACT/ LAND ACQUISITION REHABILIEATION AND RE-SETTLEMENT AUTHORITY, ALAPPUZHA** ## **REVISION PETITIONER/S:** V. THOMAS AGED 50 YEARS S/O VARGHESE, PADINJAREKARA HOUSE, AVALOOKUNNU P.O., GURUPURAM, ALAPPUZHA, PIN - 688006 BY ADVS. K.S.HARIHARAPUTHRAN PINKU MARIAM JOSE ANILKUMAR P. ## **RESPONDENT/S:** 1 M. ANILKUMAR AGED 53 YEARS S/O BHASKARTAN, SREE BHAVAN, ARYAD NORTH P.O., ALAPPUZHA., PIN - 688538 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADVS. Sanal Kumar S BHAVANA VELAYUDHAN(K/290/2003) T.J.SEEMA(K/391/2002) ## **OTHER PRESENT:** Sr.PP.Renjith George **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 6.07.2023, THE COURT ON 11/7/2023 DELIVERED THE FOLLOWING:** Crl.R.P.No.256/2023 2 ## **V.G.ARUN J.** ------------------------------------Crl.R.P.No.256 of 2023 **---------------------------------** Dated this the 11[th] day of July 2023 ## **O R D E R** The revision petitioner was accused in CC No.362 of 2019 of the Chief Judicial Magistrate's Court, Alappuzha. The case originated from a complaint filed by the first respondent alleging commission of offence under Section 138 of the Negotiable Instrument Act by the petitioner. In his complaint, the first respondent alleged that the petitioner had borrowed an amount of Rs.3,12,000/- from him on 1-4-2019, promising to repay the amount within three months and executed two post dated cheques for Rs.72,000/- and Rs.2,40,000/respectively towards discharge of the liability. As the petitioner failed to repay the amount within three months, the cheques were presented. Contrary to the assurance given by the petitioner, the cheques were dishonoured for insufficiency of funds. In spite of the first respondent issuing statutory notice demanding payment of the cheque amount, the Crl.R.P.No.256/2023 3 petitioner did not respond to the notice or clear the debt. 2. In order to prove his case, the first respondent examined himself as PW1, a witness to the transaction as PW2 and marked Exhibits P1 to P7 documents. No evidence, either oral or documentary, was rendered by the petitioner. The petitioner denied the incriminating circumstances put to him during Section 313 questioning and stated that the cheques were handed over as security for a sum of Rs.50,000/- borrowed for the treatment of his wife. Even though the amount was repaid, the cheques were not returned and was used for filing the complaint. 3. The trial court, on appreciation of evidence and consideration of the legal contentions, found the petitioner guilty and thereupon convicted and sentenced to simple imprisonment for one year and fine of Rs.3,25,000/-, with default sentence of three months. The fine amount, if realised, was directed to be paid to the first respondent as compensation under Section 357(1)(b) of the Cr.P.C. 4. The appeal against the judgment was dismissed, affirming the conviction and sentence imposed by the trial court. Crl.R.P.No.256/2023 4 5.Adv.Pinku Mariam Jose appearing for the petitioner submitted that the courts below had committed gross illegality by refusing to accept the petitioner's defence on the premise that he had not enterd the box or let in evidence, to rebut the presumption under Section 139 of the NI Act. The said finding goes against the settled position that the presumption under Section 139 can be rebutted by relying on the strength of preponderance of probabilities. The presumption can also be rebutted by relying on the inconsistencies in the complainant's case. It is contended that the inconsistencies, though highlighted, was not considered by the court below. 6. Yet another contention is that the statutory notice contains a consolidated demand for the amount due under two cheques, even though the two cheques bear different dates and were presented and dishonoured on different dates. As such, two statutory notices ought to have been issued, as contemplated under Section 138(b) of the NI Act. Further, dishonour of the two cheques having given rise to different causes of action, two separate complaints ought to be filed, as provided under Section 218 of the Cr.P.C. Crl.R.P.No.256/2023 5 7. Adv.Sanal Kumar appearing for the first respondent contended that, two courts having concurrently held against the revision petitioner, this Court is not expected to reappreciate the evidence and come to a different conclusion in exercise of the revisional jurisdiction. The contention that the presumption under Section 139 was rebutted through the preponderance of probabilities, having tilted in the petitioner's favour, is answered by submitting that having failed to send a reply to the statutory notice and to let in cogent evidence, the petitioner cannot rely on suggestions made during cross examination as proof of rebuttal of the presumption. 8. In reply to the contention that consolidated notice demanding the amount due under the two cheques was issued. It is pointed out that, since details and the amounts due under the two cheques was separately shown in the notice, no prejudice was caused by a single notice being issued. With respect to the contention that separate complaints ought to have been filed, the argument is that the legal position is covered against the petitioner by a series of decisions. 9. In spite of the appreciable efforts taken by the learned Crl.R.P.No.256/2023 6 Counsel for the petitioner, I find no reason to interfere with the well considered judgments of the trial and the appellate court. The learned Counsel is right in her contention that the accused in an offence under Section 138 can rely on preponderance of probabilities to rebut the presumption under Section 139. As far as the case at hand is concerned, except certain suggestions made during cross examination and the stand taken during his Section 313 questioning, no other material was brought before the court to bolster the defence case. Neither the suggestions nor the statement under Section 313 were sufficient to tilt the preponderance of probabilities in the revision petitioner's favour. 10. As rightly contended by the learned Counsel for the first respondent, in the statutory notice, the details of the two cheques and the cheque amounts are shown separately. Being so, a consolidated demand for the amount due under the two cheques did not cause prejudice to the petitioner. Further, such demand is not contrary to the prescription under Section 138(b) of the NI Act. 11. The contention that the dates of the cheques, their presentation and dishonour being different, separate notices Crl.R.P.No.256/2023 7 ought to have been issued and separate complaints filed cannot be countenanced in the light of this Court's decision in **V.K.Mohammed v. State of Kerala [2004 KHC 1129)** and that of the Supreme Court in **Mohan Baitha And others v. State of Bihar And Another [2001 (4) SCC 350].** 12. Having found the contention to be justified, the next question is regarding the quantum of sentence. In this regard, it is essential to note that the very purpose of Section 138 is to give authentiticity to cheque transactions by ensuring payment of the cheque amount. As such, the proceedings under Section 138 is quasi criminal in nature. Viewed in that manner, there is no requirement of sentencing the revision petitioner to imprisonment for one year, after directing to pay compensation of Rs. 3,25,000/-, whereas the cheque amount is only Rs.3,19,000/-. In the result, the revision petition is allowed in part. The finding of guilt and conviction is affirmed. The sentence of imprisonment is modified and reduced to imprisonment for a day, till rising of the court. The revision petitioner is granted four months time for paying/remitting the compensation amount, failing which the revision petitioner shall undergo Crl.R.P.No.256/2023 8 simple imprisonment for three months. The revision petitioner shall pay/remit the compensation amount and appear before the trial court for undergoing the sentence of imprisonment, till rising of the court, within four months. The coercive proceedings, if any pending against the revision petitioner, shall be kept in abeyance for four months. Sd/- **V.G.ARUN** **JUDGE** dpk