V.SURENDRAN ANU BHAVAN v. SREEDEVI S. and ANOTHER & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **CRL.A.No.97 OF 2010** **AGAINST THE JUDGMENT IN ST 63/2009 DATED 07-11-2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, MAVELIKKARA** ## **PETITIONER/COMPLAINANT:** **V.SURENDRAN ANU BHAVAN, VETTIYAR VILLAGE, MAVELIKKARA. BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)** ## **RESPONDENTS/ACCUSED & STATE:** **1 SREEDEVI S. AND ANOTHER THAZHEKKARA VILLAG, MAVELIKKARA. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.B.BIPIN R1 BY ADV. SRI.R.REJI R1 BY ADV. SRI.M.V.THAMBAN R1 BY ADV. SMT.THARA THAMBAN** ## **SRI C K PRASAD-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2019, THE COURT ON 03.12.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.97/2010 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.Appeal No.97 of 2010 --------------------------------------------Dated this the 3[rd] day of December, 2019 ## **J U D G M E N T** The appellant is the complainant. Challenge in the appeal is directed against the judgment of the trial court acquitting the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant is as follows: In order to discharge the debt towards the complainant, the accused issued a cheque dated 01.04.2007 for Rs.60,000/- to the complainant. 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 Crl.Appeal No.97/2010 3 cheque. The accused received the notice. She did not send any reply. She did not pay the amount. 3. During the trial of the case, the complainant got himself examined as PW1 and a witness was examined as PW2 and Exts.P1 to P6 were marked. No evidence was adduced by the accused. 4. The trial court found that the complainant failed to prove execution of the cheque by the accused. The trial court did not accept the evidence of PW1 and PW2 regarding the transaction and the execution of the cheque by the accused. 5. Heard learned counsel for the appellant and also the first respondent/accused and perused the records. 6. Ext.P1 is the cheque dated 01.04.2007 for Rs.60,000/alleged to have been executed by the accused and delivered by her to the complainant. Ext.P2 memorandum dated 26.04.2007 issued from the bank shows that the cheque was returned unpaid for the reason that there was no sufficient amount in the account of the accused. Ext.P4 is the copy of the lawyer notice sent by the complainant to the accused demanding payment of the Crl.Appeal No.97/2010 4 amount of the cheque. It is dated 14.05.2007. Ext.P6 letter issued to the complainant from the postal department shows that Ext.P4 notice was delivered to the accused on 17.05.2007. The complaint was filed on 27.06.2007. 7. When the complainant gave evidence as PW1, in examination-in-chief (proof affidavit), he has stated that, on 01.02.2007, the accused borrowed an amount of Rs.60,000/from him on the promise that she would repay the amount within a period of two months. PW1 has also given evidence that the accused then signed Ext.P1 cheque dated 01.04.2007 in his presence and gave it to him in discharge of the debt. The wife of the complainant was examined as PW2 to corroborate his evidence. She has also given evidence that her husband gave Rs.60,000/- to the accused and then the accused signed the cheque and gave it. 8. PW1 and PW2 have stated that the accused had brought the cheque with the entries already written in it but she signed the cheque in their presence. 9. The plea of the accused is that she had borrowed Crl.Appeal No.97/2010 5 amount from a finance company and that she had entrusted the cheque there and that the complainant had obtained that cheque and misused it. No evidence was adduced by the accused to prove this plea. 10. Of course, there are some incongruities in the evidence of PW1 and PW2. The complainant was an employee of the K.S.R.T.C. The brother of the accused was also working in the K.S.R.T.C. The evidence of PW1 would show that it was for her brother that the accused borrowed the money. At the same time, PW1 has stated at one stage that he does not know the name of the brother of the accused. But, at another stage of the evidence, he has mentioned the name of the brother of the accused. But, these incongruities in the evidence of PW1 are not sufficient to shake the creditworthiness of his evidence regarding the borrowal of amount by the accused and execution of the cheque and delivery of the same by her to him. The trial court has given undue emphasis on the innocuous incongruities in the evidence of PW1 and PW2 to disbelieve their evidence. 11. The accused has no case that Ext.P1 cheque does not Crl.Appeal No.97/2010 6 bear her signature. There is primarily the evidence of PW1 and PW2 to explain the circumstances under which the complainant came into possession of Ext.P1 cheque admittedly drawn on a cheque leaf issued to the accused by her bank to operate her account and which admittedly bears her signature. The crucial question is whether the oral evidence of PW1 and PW2 can be accepted. On broad probabilities, there is no reason to doubt or suspect the statement on oath of PW1 and PW2. The fact that the accused has no reasonable and probable explanation as to how the cheque travelled from her possession to that of the complainant is certainly a crucial aspect, while considering the acceptability of the evidence of PW1 and PW2. 12. The denial of execution and transaction canvassed by the accused, necessarily, has to be appreciated in the totality of the facts and circumstances presented in the case. In the instant case, there is no sufficient reason to disbelieve the evidence of PW1 and PW2 that the accused signed the cheque in their presence and she gave it. When the evidence of PW1 and PW2 is appreciated in the totality of the facts and circumstances Crl.Appeal No.97/2010 7 presented in the case and in the context of the unreasonable and improbable plea raised by the accused, it can very well be found that their evidence is sufficient to prove that Ext.P1 cheque was drawn and delivered to the complainant by the accused. 13. Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption had been established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the case of a mandatory presumption, the burden which rests on the accused person would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the Crl.Appeal No.97/2010 8 fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable (See **Hiten P. Dalal v. Bratindranath Banerjee: AIR 2001 SC 3897** ). 14. In the present case, no attempt whatsoever was made by the accused to rebut the presumption under Section 139 of the Act. It is not essential that the accused should adduce evidence of his own to rebut the presumption. It is enough if he succeeds in discharging the burden to rebut the presumption by the cross examination of the complainant or by bringing in probabilities in his favour and improbabilities against the complainant. But he has to prove that his version is probable and acceptable and competes in probabilities convincingly with the version of the complainant. That burden remains undischarged in the facts and circumstances of this case. Crl.Appeal No.97/2010 9 15. The accused has no case that she did not receive the lawyer notice sent by the complainant. She did not send any reply to the notice. She has not offered any explanation for not sending any reply to the statutory notice. If as a matter of fact, she did not owe Rs.60,000/- to the complainant and if she had not issued the cheque to the complainant in discharge of that liability and if the complainant had got the cheque from a finance company with whom the accused had transaction, the accused would have definitely sent a reply to the statutory notice. She would not have remained silent and inactive on receiving the notice from the complainant demanding the amount from him. The fact that the notice of demand, though duly received and acknowledged by the accused, did not evoke any response from her is another crucial circumstance against her. 16. The discussion above leads to the conclusion that the complainant had proved that the accused had drawn and delivered Ext.P1 cheque to him. The accused could not rebut the presumption under Section 139 of the Act. It follows that the complainant has been able to prove that the accused committed Crl.Appeal No.97/2010 10 an offence punishable under Section 138 of the Act. The impugned judgment of acquittal warrants interference. 17. Coming to the question of sentence, it is to be noted that an offence under Section 138 of the Act is almost in the nature of a civil wrong which has been given criminal overtones. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque shall be made, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. ## 18. In **Vijayan v. Baby : AIR 2012 SC 528** , the Apex Court has held as follows: _“The Courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment_ Crl.Appeal No.97/2010 11 _of the cheque amount but interest thereon at a reasonable rate.”_ 19. In the instant case, the cheque is dated 01.04.2007. More than twelve years is now over. Interest at the rate of 9% on the cheque amount of Rs.60,000/-, for a period of twelve years, would come to Rs.64,800/-. Then the total amount would come to Rs.1,24,800/-. But, fine cannot exceed twice the amount of the cheque. In the instant case, I find it proper to impose a sentence of fine of Rs.1,00,000/- on the accused and award that amount as compensation to the complainant. 20. In the result, the appeal is allowed and it is ordered as follows: (i) The judgment of the trial court acquitting the accused of the offence punishable under Section 138 of the N.I. Act is set aside. (ii) The first respondent/accused is found guilty of the offence punishable under Section 138 of the N.I.Act and she is convicted thereunder. (iii) The first respondent/accused is sentenced to pay a fine Crl.Appeal No.97/2010 12 of Rs. 1,00,000/- (Rupees one lakh only) and in default of payment of fine, to undergo simple imprisonment for a period of one month. (iv) The first respondent/accused is granted time till 31.01.2020 for remitting the fine amount in the trial court. (v) If the fine amount is realised, it shall be given to the complainant as compensation. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr