Partly allowed

Mathew Philip v. State of Kerala and Antoher

Kerala HC22 Feb 2016Crl.Rev.Pet/3592/2010

Case brief

AI extract

What is this about?

In a criminal revision petition under Section 138 of the Negotiable Instruments Act, the Court examined evidence regarding the discharge of a loan. The accused contended that payments made were for separate transactions. The Court found these payments did not substantiate the defense against the specific debt in question. Consequently, the lower appellate conviction and sentence were largely confi

What did the court decide?

Conviction confirmed. Sentence of imprisonment till rising of court and compensation of Rs.4,00,000/ confirmed. Petitioner directed to surrender.

Mathew Philip Vs State of Kerala and Antoher — Cheque Dishonour | Kerala HC (2016)

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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.D.RAJAN

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MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937

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Crl.Rev.Pet.No. 3592 of 2010 ( )

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AGAINST THE JUDGMENT IN CRA 511/2006 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM DATED 19-06-2010

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AGAINST THE JUDGMENT IN CC 1042/2003 of J.M.F.C.-I,KANJIRAPPALLY

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REVISION PETITIONER/ACCUSED:

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MATHEW PHILIP, IKKARAYIL HOUSE MEVADA PO, PULIYANOOR. BY ADV. SRI.JAMES KURIAN

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RESPONDENT(S):

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STATE OF KERALA AND ANTOHER THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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T.T.DEVASIA, PROPRIETOR, POOVAKULAM BANKERS, KOZHIVANANI. R,R2 BY ADV. SRI.G.S.REGHUNATH R,R2 BY ADV. SRI.A.S.SHAMMY RAJ R BY PUBLIC PROSECUTOR N SURESH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.D.RAJAN, J

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......................................... Crl.R.P.No.3592 of 2010 ....................................... Dated 22^nd February, 2016

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ORDER

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This revision petition is preferred against the judgment in

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Crl.A.511 of 2006 of Additional Sessions Judge (Adhoc II), Kottayam. The petitioner was the accused in C.C.1042 of 2003 of Judicial First Class Magistrate, Kanjirappilly under Section 138 of N.I.Act. The complainant's case in the trial court is that in discharge of a debt, accused issued a cheque for Rs.4,00,000/- on 15.8.2003 to the complainant drawn on Anikkad Service Co-operative bank Ltd. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing. Even after notice, there was no repayment. In the circumstance, the complaint was filed in the trial court.

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During trial, complainant was examined as PW1 and his documents were marked as Ext.P1 to P20. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2 and marked Ext.D1 to D4 in the trial court. Learned Magistrate convicted the accused under Section 138

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CRRP 3592/2010 2

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of N.I.Act and sentenced to simple imprisonment for five months and compensation of Rs.4,00,000/- under Section 357 (3) Cr.P.C. Being aggrieved by that, he preferred Crl.A.511 of 2006 before Additional Sessions Court, Adhoc II, Kottayam where the sentence was modified and appellant was directed to undergo simple imprisonment till rising of court and fine of Rs.4,00,000/- with a default sentence of five months. Being aggrieved by that, the accused preferred this revision petition.

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Learned counsel appearing for the revision petitioner contended that there was an earlier transaction during 19981999 and in connection with that transaction, he entrusted signed cheque leaves to the second respondent. Learned counsel also contended that revision petitioner paid Rs.25000/and another Rs.5000/- to the second respondent on 30.3.2001 which was entered in Ext.P11. He also paid Rs.1,31,000/- on 14.6.2001 which was entered in Ext.P14. If debt amount is less than the cheque amount, no offence under Section 138 of the N.I.Act will lie against the appellant.

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Learned counsel appearing for the second respondent strongly resisted the above contention and contended that Ext.P1 was issued in discharge of a debt or liability and the

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repayment was in connection with another loan transaction. A sum of Rs.2,69,712/- was received by the revision petitioner in four transactions on executing a promissory note and the total due amount with interest was Rs.4,18,000/-. The second respondent gave a discount of Rs.18,000/-, then appellant issued Ext.P1 for a sum of Rs.4,00,000/-and the promissory note was returned to him. The amount repaid was in connection with another transaction which was not deducted from the total amount in this case. Therefore the contention is only to be discarded.

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According to Section 138 of the Negotiable Instruments Act, where any cheque drawn by a person on an account maintained by him with a bank 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 liability, is returned by the bank, 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 a bank, such person shall be deemed to have committed an offence under Section 138 of the Negotiable Instruments Act. The cheque

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CRRP 3592/2010

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has to be presented within the statutory period in which it is drawn or within the period of its validity. Secondly, the payee or holder in due course of the cheque makes a demand for payment of such amount by giving a notice in writing to the drawer of the cheque within thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. If the drawer fails to pay the amount within fifteen days, a complaint is maintainable.

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The complainant was examined in the trial court as

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PW1. His evidence shows that Ext.P1 cheque was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 and P3 are the dishonour memos and intimation. The second respondent demanded the amount by giving a notice in writing. Ext.P4 is the copy of the notice, Ext.P5 is the postal receipt, Ext.P6 is the acknowledgment card and Ext.P7 is the copy of the account opening form. Analysing the evidence of PW1 and Ext.P1, it is found that when the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient.

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According to Section 139 of the N.I.Act, it shall be presumed that unless the contrary is proved, the holder of the cheque received the cheque of the nature referred under Section 138 of N.I.Act for the discharge of that debt in whole or in part of other liability. The accused can raise the reasonable probability by asking suggestive questions or by adducing defence evidence to rebut the presumption for which I rely on the decision in Beena V. Muniappan (AIR 2001 SC 2995) and Narayana Menon V. State of Kerala (2006(3) KLT 404). A three Judge bench of the Apex Court in Rangappa V. Sri Mohan (2010(11) SCC 441) held as follows:-

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“The presumption mandated by Section 139 includes a presumption and there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or lliability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant”.

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The revision petitioner examined DW1 and DW2 to

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CRRP 3592/2010

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rebut the presumption under Section 139 of N.I.Act. DW2 deposed that accused was an employee of Kozhuvanal Service Co-operative Bank, Kozhuvanal Branch and he was on leave on 2.1.2001 and 11.9.2001. Revision petitioner also examined DW1, Village Officer who issued Ext.D3 certificate. It shows that the revision petitioner has property within the territorial limit of Meenachil Village. Ext.D1 is a paper slip containing certain entries and Ext.D2 is the pass book. Ext.D4

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is the copy of the attendance register. Even though these documents were produced in the trial court, it will not be sufficient to substantiate the defence contention.

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In this backdrop, I have considered whether rebuttable evidence is sufficient to discard the case of the second respondent. The specific case of the second respondent is that he availed a loan of Rs.65,200/- as per Ext.P12 and Rs.35,000/- as per Ext.P13 and Rs.85,756/- as per Ext.P15 and Rs.84,756/- as per Ext.P16. Therefore total loan amount was Rs.2,69,712/- which is specifically mentioned in Ext.P11. The interest will come to Rs.1,49,004/and the total amount is Rs.4,18,716/-. Analysing the oral testimony of PW1 and Ext.P12 to P16, it is clear that a total

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liability of Rs.4,18,716/- was calculated by the second respondent. The revision petitioner took a contention that he repaid the amount of Rs.25,000/- and Rs.1,31,000/- which was repaid in connection with two other loans in Ext.P11. Rs,25,000/- was paid on 30.3.2001 and Rs.1,31,000/- with interest was paid on 14.6.2001. The above two repayments were made in connection with loan account Nos.201 and 237. Therefore those accounts were closed. The second respondent contended that the present debt was in connection with loan account 235, 511, 555 and 560. Therefore, the total amount of Rs.4,18,400/- and deduction for Rs.18,400/- was given to the revision petitioner at the time of settlement of account for Rs.4,00,000/- is believable and the issuance of Ext.P1 is proved. Therefore the defence contention itself is not sustainable in law and I discard it.

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In the result, the conviction under Section 138 of N.I.Act is confirmed. The revision petitioner is sentenced to imprisonment till rising of court and to pay compensation of Rs.4,00,000/- under Section 357(3) Cr.P.C and in default, imprisonment for three months. If compensation amount is realised, the entire amount shall be disbursed to the

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complainant as compensation. Revision petitioner is directed

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to surrender in the trial court to undergo the modified

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sentence. The revision petition is allowed in part.

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P.D.RAJAN, JUDGE

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lgk

Mathew Philip v. State of Kerala and Antoher

Case brief

What is this about?

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Mathew Philip v. State of Kerala and Antoher

Case brief

What is this about?

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