Dismissed

V.I. John v. State of Kerala

Kerala HC6 Feb 2012Crl.Rev.Pet/285/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition challenging a conviction for a cheque dishonour under Section 138 NI Act. Upholding the lower courts' findings, the Court held that the accused failed to rebut the presumption of liability under Sections 139 and 118 NI Act, and his failure to respond to the statutory notice confirmed culpability.

What did the court decide?

Revision petition dismissed; conviction and sentence under Section 138 NI Act upheld.

V.I. John Vs State of Kerala — 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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MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933

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Crl.Rev.Pet.No. 285 of 2012 (A)

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[CRL.A.NO.198/2009 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, (ADHOC) COURT-I, PATHANAMTHITTA DTD. 16/12/2011. ST.NO.881/2007 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT -II, PATHANAMTHITTA DTD. 11/07/2009]

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REVISION PETITIONER/APPELLANT/ACCUSED:

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V.I. JOHN, S/O.V.M.IYPE, SHIBU BHAVAN, CHEEKKANAL, OMALLOOR.P.O & VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.V.SETHUNATH,

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SRI.V.VINAY, SRI.K.T.SEBASTIAN.

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RESPONDENTS/RESPONDENT/COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.

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2. SANTHOSH J.KURIAN, SHIBU BHAVANAM, KODUMTHARA.P.O., KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT.

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R1 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH.

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Prv.

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P.BHAVADASAN, J.

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- - - - Crl.R.P.No.285 of 2012

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Dated this the 6^th day of February, 2012

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O R D E R

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Undaunted by the concurrent findings against him, the accused, who was convicted for the offence punishable under section 138 of the Negotiable Instruments Act and sentenced to suffer simple imprisonment till the rising of the court and to pay compensation of Rs.10,000/-, in default of payment of which he had to suffer simple imprisonment for a period three months, has come up in revision. The appeal filed by him was dismissed by the lower appellate court.

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The short case of the complainant was that an amount Rs.6,000/- was due from the accused to the complainant for which Ext.P1 cheque was issued, that 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 amount paid. Hence the complaint was laid.

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Crl.R.P.No.285 of 2012

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On appearance of the accused, the particulars of 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 of Cr.P.C., he denied all the incriminating circumstances brought out against him in the evidence. According to the accused, the complainant was running a business in the premises of the cousin of the accused. The complainant is alleged to put up a shed behind the shop room at his expense. For vacating the shop room, the complainant demanded Rs.6,000/- and therefore he had issued a cheque to the complainant without the consent of the owner of the shop. When the cheque was demanded back, it was not returned. He examined DW1 and DW2 in support of his defense.

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On an appreciation of the evidence in the case, both the courts below came to the conclusion that the offence had been made out and the defence set up by the accused

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-:3:-

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Crl.R.P.No.285 of 2012

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was not succeeded in substantiated. Accordingly he was convicted and sentenced as already mentioned.

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The learned counsel appearing for the revision petitioner pointed out that revision petitioner had no previous transactions with the complainant and so it could not be said that the issuance of cheque is due to the discharge of liability. This aspect has been omitted to be noticed by the courts below. The learned counsel went on to point out that the evidence of DWs 1 and 2 was not properly appreciated. The complainant has no independent transaction with the accused.

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The issuance and execution of the cheque are admitted. If that be so, as rightly noticed by the courts below the presumptions available under section 139 and 118 of the Negotiable Instruments Act are available to the complainant. The burden is on the accused to rebut this presumption. It is true that he had tried to rebut the presumption through the evidence of DWs 1and 2. Both the courts below found that, it was of no help to the accused.

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-:4:-

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Crl.R.P.No.285 of 2012

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The courts below has stated that, if as a matter of fact, the cheque was given as security for the cousin brother, in that case also the accused is liable. The lower appellate court also independently evaluated the evidence on record and has come to the conclusion that the cheque was executed to discharge the debt and the claim put forward by the accused cannot be accepted.

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The evidence of PW1 was considered in detail by the lower appellate court has found that the contention taken by the defence cannot be accepted.

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Further, if as a matter of fact, there was no transaction between the accused and the complainant it is highly improbable that the accused would remain passive on getting the statutory notice. His silence on receipt of the statutory notice goes a long way to show his culpability. Further he took no steps for getting the cheque back or at least could have issued a stop payment memo to the bank concerned.

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It is the above facts and circumstances that

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Crl.R.P.No.285 of 2012

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persuaded the courts below to come to the conclusion that the cheque was inf act issued by the accused to discharge the liability due to the complainant. Findings are arrived on appreciation of evidence. Interference in the revisional jurisdiction is quite un-called for. This revision petition is without any merits and accordingly dismissed.

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P.BHAVADASAN, JUDGE

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KKJ

V.I. John v. State of Kerala

Case brief

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V.I. John v. State of Kerala

Case brief

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