Dismissed

Radhakrishnan Master v. v.M.Muhammed and Another

Kerala HC9 Feb 2012Crl.Rev.Pet/2414/2011

Case brief

AI extract

What is this about?

In a criminal revision petition challenging a conviction under Section 138 NI Act for cheque dishonour, the High Court upheld the lower appellate court's confirmation of guilty finding. The Court rejected the accused's plea that a third party obtained the cheque, noting his failure to address possession issues or reply to statutory notice. A two-month time extension was granted to pay the outstand

What did the court decide?

Conviction dismissed and sentence affirmed; two months time granted to pay the balance fine amount.

Radhakrishnan Master Vs v.M.Muhammed and Another — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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THURSDAY, THE 9TH DAY OF FEBRUARY 2012/20TH MAGHA 1933

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Crl.Rev.Pet.No. 2414 of 2011 ( )

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CRA.571/2008 of ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA, DATED 22-3-2011 ST.2716/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,NADAPURAM, DATED31-5-2008

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REVISION PETITIONER/APPELLANT/ACCUSED:

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RADHAKRISHNAN MASTER, S/O KUNHIRAMAN NAIR, AGED 51 YEARS, CHALAKKOTH HOUSE, EDAVANAD AMSOM DESOM, KOYILANDY TALUK.

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BY ADV. SRI.V.N.RAMESAN NAMBISAN

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RESPONDENT/RESPONDENT/COMPLAINANT:

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1. V.M.MUHAMMED, AGED 51 YEARS, S/O ALIKUTTY MUSALIAR, KALATHIL HOUSE, KUTTIADI AMSOM DESOM PIN 673 001

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY SRI.ZUBAIR PULIKKOOL

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R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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MJL

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CRRP.NO:2414/2011

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE-I	:	TRUE COPY OF ORDER DATED 18-10-2011 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,
		NADAPURAM IN CRL.M.P.3677/2011 IN S.T.2716/2005
RESPONDNETS'	ANNEXURES:	NIL

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/TRUE COPY/ P A TO JUDGE

MJL

P.BHAVADASAN, J.

Crl.R.P.No.2414 of 2011

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Dated this the 9^th day of February, 2012

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O R D E R

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The accused was prosecuted for the offence punishable under Section 138 of Negotiable Instruments Act. He was found guilty. Accordingly, he was convicted and sentenced to suffer simple imprisonment for a period of 3 months and also to pay `75,000/- to the complainant under Section 357(3) of Cr.P.C, in default of payment of which he had to suffer simple imprisonment for a period 5 months. In appeal, the appellate court confirmed the conviction but modified the sentence, which reads as follows:-

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In the result, appeal is allowed in part. The finding of the trial court finding the accused guily u/s.138 of N.I.Act is confirmed. Sentence is modified to a fine of Rs.85,000/- in default simple imprisonment for 3 months. If the fine amount is recovered 82,000/- (Cheque amount + reasonable cost) is to be paid to the complainant PW1 u/s.357(1)(b) Cr.P.C.

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According to the complainant, the accused, who is a

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Crl.R.P.No.2414 of 2011

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teacher by profession and also a friend of the complainant happened to buy gold ornaments from the shop owned by the complainant for an amount of Rs.85,000/- on 01.03.2005. An amount of Rs.10,000/- was paid in cash and for the balance amount of Rs.75,000/- the accused is alleged to have issued Ext.P1 cheque. The cheque was requested to be presented after 10.08.2005. However, the cheque on presentation bounced for want of funds in the account of the accused. A statutory notice issued to the accused neither invoked any response nor was the money paid. Hence the complaint was laid.

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The trial court took the cognizance of the offence. On appearance of the accused, the particulars of the offence were read out to him, to which he pleaded not guilty and claimed to be tried. Accordingly, the complainant examined himself as PW1 and had Exts.P1 to P6 marked. After the close of the complainant's evidence, the accused was questioned under section 313 Cr.P.C. wherein he

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denied all the incriminating circumstances brought out against him in the evidence and maintained that he had not issued any cheque to the complainant. He depicted the complainant as a complete stranger and according to him one Vasu obtained a cheque from the accused and had passed it on to the complainant without the concurrence of the accused. He denied any liability to the complainant. However, he chose to adduce no evidence.

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Both the courts below on an independent evaluation of the evidence in the case came to the conclusion that the complainant had succeeded in establishing his case and also that no rational or acceptable defence established by the accused and the case put forward by him is totally unacceptable. Accordingly he was found guilty and convicted and sentenced him as already mentioned.

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The learned counsel appearing for the revision petitioner very vehemently contended that both the courts below have omitted to notice the various provisions of the

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Crl.R.P.No.2414 of 2011

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Negotiable Instruments Act and principles laid down by the decisions of this Court. Even assuming that the presumption available under Sections 118 and 139 goes in favour of the complainant, the burden to rebut the presumption vested on the accused and if a reasonable explanation offered by the accused in support of his case that would be sufficient to rebut the burden. Then the complainant has to prove his case. In the case on hand, evidence of PW1 was referred to and in cross examination he had stated that Vasu was familiar to him and Vasu used to purchase gold ornaments from his shop. Thus according to the learned counsel for the revision petitioner, that is sufficient to show that the defence set up by the accused is probable.

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The learned counsel then went on to point out that even assuming that the signature is admitted, that will not be sufficient to establish the due execution and that will have to be proved by the complainant and in the absence of

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Crl.R.P.No.2414 of 2011

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any evidence to that effect, the complainant's case ought to have been rejected. In support of his case, he relied on the decisions reported in Kumar Exports V. Sharma Carpets [(2009) 2 SCC 513] , Bhaskaran Nair V. Mohanan[2009 (2) KLT 897] and Krishna Janardhanan Bhat V. Dattatraya G.Hedge (2008)4 SCC 54.

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Though the arguments look formidable at the first blush, on a close scrutiny they can be found to be without any substance whatsoever. The complainant had a case that after having purchased jewellery from the complainant and paid Rs.10,000/-, for the balance amount of Rs.75,000/-, Ext.P1 cheque has been issued. He presented the cheque for encashment which was returned for want of funds in the account of the accused. The statutory notice issued to the accused was received by him, but he thought it unnecessary to respond.

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Both the courts below have considered the evidence in considerable detail and have come to the conclusion that

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Crl.R.P.No.2414 of 2011

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the complainant has succeeded in establishing his case. One may have a look at the provisions of the Indian Evidence Act in this regard.

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Section 6 of the Negotiable Instruments Act defines cheque as follows:-

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“Cheque”.-- A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form

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Section 118 of the Act reads as follows:-

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Presumptions as to negotiable instruments. -- Until the contrary is proved, the following presumptions shall be made

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(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiatted or transferred for consideration;

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(b) as to date -- that every negotiable instrument bearing a date was made or drawn on such date;

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(c) as to time of acceptance- - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

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(d) as to time of transfer- -that every transfer of a negotiable instrument was made before its maturity;

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(e) as to order of indorsements --that the

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Crl.R.P.No.2414 of 2011

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indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

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(f) as to stamps- - that a lost promissory note, bill of exchange or cheque was duly stamped;

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(g) that holder is a holder in due course-- that the holder of a negotiable instrument is a holder in due course:

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Section 138 reads as follows:-

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138. Dishonour of cheque for insufficiency, etc., of funds in the account.--

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Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

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Provided that nothing contained in this section shall apply unless--

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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of

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Crl.R.P.No.2414 of 2011

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the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

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Section 139 reads as follows:--

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Presumption in favour of holder.-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 for the discharge, in whole or in part, of any debt or other liability]

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One may have bear in mind the above provisions while considering the contentions raised by the learned counsel for the revision petitioner in this case.

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It is seen that even though a statutory notice was received by the accused, he chose not to reply. If he had a case that he had no transaction with the complainant or that complainant had misused the cheque issued by the accused, he would have immediately responded. Instead, he chose to remain passive. His silence goes a long way in showing his culpability.

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Apart from the above fact, except for certain

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Crl.R.P.No.2414 of 2011

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suggestions regarding the familiarity with Vasu who too might have purchased gold ornaments, there is nothing in the evidence of PW1 which would help the accused. The mere fact that PW1 has admitted that Vasu was familiar to him and used to purchase the gold ornaments does not make the defence set up by the accused probable. First of all, there is no evidence to show the circumstances under which Vasu came into the possession of the cheque issued by the accused. One shall not forget that the accused is a school teacher who knows the consequences of loosing a cheque containing his signature. He should also know the consequences of not responding to the statutory notice received by him.

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It is true that in the decision reported in Bhaskaran Nair V. Mohanan[2009(2) KLT 897] , Pandmanabhan V. Vasudevan Namboodiriv [2010(3)

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KLT 216] it has been held that merely because the signature in the cheque is admitted, it does not follow that

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Crl.R.P.No.2414 of 2011

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the cheque was duly executed. It was held in the above decisions that burden to prove execution of the cheque is on the complainant.

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In the decision reported in Krishna Janardhanan Bhat V. Dattatraya G.Hedge (2008)4 SCC 54 , the issue considered was regarding proof to be adduced by the accused in order to rebut the presumption under Section 139 of the NI Act. In the said decision it was held that it is unnecessary that the accused should adduce evidence independently and that he could rely on the evidence adduced by the prosecution to prove that the defence set up by him is probable. Apex Court went on to hold that as far as the accused is concerned, the burden is not onerous on the prosecution and prepaunderence of probabilities would be sufficient. The same view has been taken in the decision reported in Kumar Exports V. Sharma Carpets [(2009) 2 SCC 513] ,.

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One can have no quarrel with the above

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Crl.R.P.No.2414 of 2011

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propositions. It is well settled that the burden of proof on the accused is very slight and it is not necessary for him to adduce independent evidence to set up his defence. He can rely on the prosecution evidence to show that the case set up by him is possible and probable.

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One may now return to the provisions of NI Act which had already been extracted. Section 118 of the NI Act uses the word “may” whereas Section 139 uses the word “shall”. One may have a look at Section 139 once again. The said provision says that it will be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 was for the discharge of a debt or a liability due to him. The cheque referred is one mentioned in Section 138. One may look at Section 138 which refers to a cheque by a person drawn on an account maintained by him with a banker for payment of money to another person from out of his account. Once it is shown that a person has drawn a cheque on an account maintained by him for

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Crl.R.P.No.2414 of 2011

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payment of money to another person, that is the cheque contemplated under Section 138 and as per Section 139 it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque in discharge of a liability. Here one has to notice that the signature is admitted and it is drawn on an account maintained with a banker.

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In the case on hand the stand adopted by the accused seems to be extremely strange. His plea is one of complete denial. He depicted the complainant as a total stranger and denied the purchase of gold ornaments. But it is significant to notice that he has no explanation as to how the complainant came into possession of the cheque. He has no case that particulars in the Ext.P1 cheque were filled up by the complainant or someone else at his behest. Merely by suggesting that Vasu might have handed over the cheque to the complainant, it could not be said that the presumption available under Section 139 stands rebutted.

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There is nothing to show that the claim that the cheque was given to Vasu is true.

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It was the above facts and circumstances which persuaded the courts below to come to the conclusion that the evidence adduced by the accused is insufficient to come to the conclusion that the defence set up is true. Both the courts below on proper evaluation of the evidence found that offence had been made out. Unless it is shown that the findings are contrary to the evidence on record, interference under the revisonal jurisdiction is quite uncalled for. No infirmity in the findings could be established. 22. The result is that this revision petition is without any merits and it is liable to be dismissed. I do so.

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It is submitted that an amount of Rs.45,000/- has been deposited as per the orders of the lower appellate court and a sum of Rs.30,000/- was deposited as per the order of this Court while admitting this revision petition. These amounts will be adjusted towards the amount

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Crl.R.P.No.2414 of 2011

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ordered to pay as fine by the lower appellate court.

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Faced with the above situation the learned counsel appearing for the revision petitioner prays that some time may be granted to the revision petiitoner to pay the balance amount as ordered by the lower appellate court.

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Considering the nature of the case, it is felt that some time can be granted. Petitioner before this Court is accordingly granted two months time from today to pay the balance amount after adjusting the amount deposited towards fine amount ordered to be paid by lower appellate court as well as this Court, failing which, the default sentence imposed by the lower appellate court shall take effect.

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It is also directed that the amounts deposited is allowed to be withdrawn by the respondent/complainant on proper application.

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P.BHAVADASAN, JUDGE

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kkj

Radhakrishnan Master v. v.M.Muhammed and Another

Case brief

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Radhakrishnan Master v. v.M.Muhammed and Another

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