The High Court of Kerala dismissed a criminal revision petition challenging a conviction under Section 138 of the Negotiable Instruments Act, 1881. The court held that the appellant failed to adduce cogent evidence to rebut the statutory presumption of debt discharge under Section 139.
The criminal revision petition was dismissed with no merit found.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938
CRL.REV.PET.NO. 78 OF 2006 ( )
AGAINST THE JUDGMENT IN CRA NO.158/2001 OF THE 3RD ADDITIONAL SESSIONS JUDGE, KOLLAM DATED 23-11-2005
AGAINST THE JUDGMENT IN CC NO.479/1997 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR DATED 24-07-2001
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
D.VISWANATHAN, VILAYIL VEEDU, KARAMCODE, CHATHANNOOR, MEENADU VILLAGE, KOLLAM.
BY ADVS.SRI.B.KRISHNA MANI SRI.RAHUL VENUGOPAL
RESPONDENT(S)/STATE/COMPLAINANT.:
1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. K.LEKSHMANAN, RAJESH BHAVAN, THAZHAM, CHATHANNOOR, KOLLAM.
BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
NS
P.D. RAJAN, J.
Crl. Rev.Pet. No.78 of 2006
Dated this the 24th day of October, 2016
O R D E R
This revision petition is preferred by the accused against the judgment in Criminal Appeal No.158 of 2001 of the 3rd Additional Sessions Judge, Kollam. He was the accused in C.C. No.479 of 1997 before the Judicial First Class Magistrate, Paravoor which was filed under Sec.138 of the NI Act. The learned Magistrate convicted the accused under Sec.138 NI Act and sentenced him to simple imprisonment for six months and compensation of Rs.30,000/- under Sec.357(3) Cr.P.C. Against that, the accused preferred the above criminal appeal, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, accused preferred this revision petition.
Crl. Rev.Pet. No.78 of 2006 2
Kollam. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing but there was no repayment. Hence he preferred the above complaint. During trial the complainant was examined as PW1 and his documents were marked as Exts.P1 to P8. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2.
Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any cheque drawn by a person an 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: Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank
Crl. Rev.Pet. No.78 of 2006 3
within a period f six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(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 the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
evidence shows that Ext.P1 was issued in discharge of a
debt. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo. He demanded the amount by giving a notice in writing. Ext.P3 is the copy of the lawyer notice, Ext.P4 is the postal receipt, Ext.P5 is the postal acknowledgment, Ext.P6 is another memo issued from the District Co-operative Bank, Kollam, Ext.P7 is the cheque return register and Ext.P8 is the ledger extract. Analysing the evidence of PW1 it is true that Ext.P1 was presented for encashment and it was dishonoured for the reason of funds insufficient. When a cheque is
Crl. Rev.Pet. No.78 of 2006 4
dishonoured for the reasons stated under under Sec.138 of the NI Act a presumption under Sec.139 NI Act can be drawn in favour of the holder of the cheque.
Crl. Rev.Pet. No.78 of 2006 5
Acrylic Ltd. [AIR 2000 SC 145] held as follows:
“ There is a legal presumption that the cheque was issued for discharging an antecedent liability.
Crl. Rev.Pet. No.78 of 2006 6
The aforesaid presumption is in favour of the holder of the cheque. It is not mentioned in the section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should adduce evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office-bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office-bearers-accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but the office-bearers of the company alone are made the accused such office-bearers-accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability.”
7. Revisional jurisdiction is a supervisory power
to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been
Crl. Rev.Pet. No.78 of 2006 7
done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. In this case, the accused failed to adduce sufficient evidence to rebut the presumption under Sec.139 NI Act and the complainant proved his case as stated under Sec.138 NI Act. The trial court rightly appreciated the evidence and convicted the accused which was upheld by the appellate court. I find no illegality or irregularity in the order of the courts below.
There is no merit in this revision petition and is dismissed accordingly.
NS/27/10/2016
Sd/- P.D. RAJAN, JUDGE / True Copy / P.A. To Judge
3 issues framed by the court
Whether the presumption under Section 139 of the Negotiable Instruments Act applies when a cheque is dishonoured for insufficient funds.
Whether the appellant adduced sufficient evidence to rebut the presumption under Section 139 of the Negotiable Instruments Act.
Whether the High Court should exercise its revisional jurisdiction to interfere with the conviction and sentence.
Colour shows how this judgement treated each authority
Beena v. MuniappanApplied¶37
Beena v. Muniappan (AIR 2001 SC 2995) · Who else cites this
M.S. Narayana Menon Alias Mani v. State of KeralaApplied¶37
M.S. Narayana Menon Alias Mani v. State of Kerala and Another [2006 (6) SCC 39 · Who else cites this
Anil Hada v. Indian Acrylic Ltd.Applied¶40
Anil Hada v. Indian Acrylic Ltd. [AIR 2000 SC 145] · Who else cites this
4 provisions across 2 enactments
D. VISWANATHAN
THE STATE OF KERALA
K.L.EKSHMANAN
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
