Dismissed

Siddique v. Laila Thyagarajan

Kerala HC24 Feb 2012Crl.Rev.Pet/432/2012

Case brief

AI extract

What is this about?

High Court dismissed a criminal revision petition challenging conviction and sentence under Section 138 of the Negotiable Instruments Act. The Court upheld the lower courts' findings that the accused's defense of cheque misuse was false and that he failed to rebut the statutory presumption.

What did the court decide?

Revision petition dismissed; conviction and sentence of simple imprisonment and compensation affirmed.

Siddique Vs Laila Thyagarajan — 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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FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933

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Crl.Rev.Pet.No. 432 of 2012 (D)

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------------------------------------------[CRL.A.NO.186/2010 OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-I, ALAPPUZHA, CC.NO.325/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA]

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REVISION PETITIONER/APPELLANT/ACCUSED:

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SADDIQUE, S/O.MUHAMMAD, VADIYIL HOUSE, NAVAROJI PURAYIDOM, LAJNATH WARD, CIVIL STATION P.O, ALAPPUZHA.

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BY ADVS.SRI.P.KRISHNA KUMAR (ALAPPUZHA),

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SRI.S.GULZAR, SRI.R.SURAJ KUMAR, SRI.SUNIL J.CHAKKALACKAL.

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RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

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1. LAILA THYAGARAJAN, W/O.THYAGARAJAN, THUMBAPARAMBU, ERAVUKADU WARD, THIRUVAMBADY P.O, ALAPUZHA, PIN- 688 002.

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

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R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Prv.

P.BHAVADASAN, J.

Crl.R.P.No.432 of 2012

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Dated this the 24^th day of February, 2012

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The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to suffer simple imprisonment till the rising of court and to pay a sum of Rs.25,000/- as compensation to the complainant under Section 357(3) of Cr.P.C, with a default clause of imprisonment of three months. In appeal, the lower appellate court confirmed the conviction and sentence passed by the trial court.

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The short case of the complainant was that, on 06.12.2004 a sum of Rs.20,000/- was borrowed from him by the accused. In order to discharge the said debt, the accused issued Ext.P1 cheque, which on presentation for encashment returned with endorsement ‘account closed’. A statutory notice issued to the accused invoked a reply containing false statements. Since the amount remained

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Crl.R.P.No.432 of 2012

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unpaid, complaint was laid.

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Cognizance of the offence was taken. On

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appearance of the accused, all formalities were complied with. Particulars of the offence were read out to him, to which he pleaded not guilty and claimed to be tried. The complainant therefore examined herself 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. His defence was that his wife had borrowed a sum of Rs.2000/- from the complainant in 1995 and at that time Ext.P1 cheque was given. That amount was repaid, but the cheque was not returned. The said cheque had been misused. In support of his case he examined himself as DW1 and his wife as DW2 and had Ext.D1 marked.

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Both the courts below, on an appreciation of the evidence in the case came to the conclusion that the complainant had succeeded in establishing the case against the accused and the defence set up by the accused is false.

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Crl.R.P.No.432 of 2012

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Accordingly the accused was found guilty and sentence as already mentioned followed.

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The learned counsel appearing for the revision petitioner pointed out that he had filed an application before the trial court for sending the cheque for expert’s opinion and that was not considered properly by the court below. Even in the appeal memorandum a specific ground has taken to that effect but the appellate court also not considered that aspect. Referring to the evidence of PWs 1 and 2, it is pointed out that, as the amount sought was only Rs.9000/-, it can be assumed that Rs.9000/- only was paid but the cheque amount is Rs.20,000/-. The learned counsel also pointed out that even assuming that the signature is admitted, it does not follow the execution of the cheque is proved, unless there is evidence to that effect adduced by the complainant. In support of his contention, the learned counsel relied on the decision reported in Jose V. Joy

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[ 2008(3) KLT 512].

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Crl.R.P.No.432 of 2012

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None of the above contentions have any basis or foundation at all. The complainant has examined herself as PW1 and has spoken about the case put forward by the complainant as well as she has produced supporting documents. Both the courts below were impressed by the evidence given by the complainant. Once it is proved that cheque in the nature of section 138 has been issued, then the presumption under Section 139 follows. The cheque as mentioned in Section 138 is Cheque which is drawn by any 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. If the cheque satisfies the above ingredients, it qualifies to attract the presumption under Section 139 of the Negotiable Instruments Act.

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The complainant has proved the due execution of cheque and fact remains that, when a cheque contains signature of the accused drawn on a bank in which he is holding an account, there should be some possible

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Crl.R.P.No.432 of 2012

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explanation as to how complainant had come into possession of the cheque.

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It is in the above circumstances one has to consider the defence set up by the accused. In the case on hand, the contention of DWs 1 and 2, i.e. the accused and his wife, was that his wife had borrowed a sum of Rs.2000/- in 1995 and at that point of time had given Ext.P1 cheque as security. Even though the amount was repaid the cheque was not returned. The same view has taken in the reply notice also.

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Unfortunately for the accused, when Ext.D1 was looked into, the cheque leaf which found to be the subject matter of present proceedings was issued from the cheque book, which was handed over to the accused by the Bank only in 1999. This aspect considerably weighed with the courts below.

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The learned counsel appearing for the revision petitioner pointed out that, that is only a mistake and that

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Crl.R.P.No.432 of 2012

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does not prove the case of the complainant. The case of the complainant was that it was in 2004 the cheque was issued. It was contended that the burden to prove the same was on the complainant. Referring to a portion of the evidence given by PW1, it was contended that even according to her, the amount was borrowed from PW1 for DW1 to return from Gulf. So that it is clear that at the relevant time he was not in station. The trial court had considered this matter in detail. The lower appellate court has noticed that DW1 has admitted in cross examination that he was staying back at his native place during the year 2004 I.e.on 01.12.2004. Even assuming that, the accused was in Gulf, when the amount was received on his behalf, the fact remains that the cheque containing his signature has been handed over to the complainant. The burden is on the accused to offer a possible explanation as to how the cheque has come into the possession of the complainant. His explanation was found to be totally false and that advances the case of the

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Crl.R.P.No.432 of 2012

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complainant. Thereafter the accused cannot be heard to say that the court need not look into the defence set up by the accused.

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Both the courts below were justified in coming to the conclusion on the basis of evidence adduced by PW1 and the documents produced by her, that the complainant is entitled to take aid of the presumptions available under Section 139 and 118 of the Negotiable Instruments Act. Both the courts below were also justified in coming to the conclusion that in such circumstances the burden was on the accused to rebut the presumption.

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As already noticed, the attempt to rebut the presumption had miserably failed, which would certainly advance the case of the complainant. True, there were some infirmities in the evidence of complainant but that cannot be overemphasized or given undue importance in the light of the fact that defence set up by the accused was found to be totally false.

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Crl.R.P.No.432 of 2012

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Findings of the courts below are based on appreciation of evidence and are findings of facts. Unless it is shown that, there is any illegality, irregularity or impropriety in the findings of the courts below, interference under the revisional jurisdiction is quite uncalled for. No such infirmity is shown in the case on hand.

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Coming to the findings of the courts below that, the accused is guilty of the offence punishable under Section 138 is fully justified and the conviction has to stand. As far as the sentence is concerned, it seems to be extremely reasonable and no grounds are made out to interfere with the sentence also. The result is that this revision petition is without merits and it is liable to be dismissed. I do so.

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P.BHAVADASAN JUDGE

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kkj

Siddique v. Laila Thyagarajan

Case brief

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Siddique v. Laila Thyagarajan

Case brief

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