Dismissed

T.Sunilkumar v. State of Kerala

Kerala HC17 Jan 2020Crl.Rev.Pet/45/2020

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision petition filed by an accused challenged his conviction and sentence for dishonour of a cheque under Section 138 of the Negotiable Instruments Act. Upholding the finding that the accused failed to rebut the statutory presumption, the court confirmed the conviction and granted a four-month extension to remit the fine.

What did the court decide?

Revision petition dismissed; conviction confirmed; sentence affirmed; petitioner granted 4 months to remit fine.

T.Sunilkumar Vs State of Kerala — Cheque Dishonour | Kerala HC (2020)

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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 R. NARAYANA PISHARADI

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FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941

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Crl.Rev.Pet.No.45 OF 2020

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AGAINST THE JUDGMENT IN CRA 1/2014 DATED 23-10-2019 OF ADDITIONAL SESSIONS COURT - III, THALASSERY

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AGAINST THE JUDGMENT IN ST 3319/2012 DATED 26-12-2013 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,THALASSERY

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REVISION PETITIONER/APPELLANT/ACCUSED:

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T.SUNILKUMAR

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AGED 55 YEARS

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S/O. RAGHAVAN, SUNIL NIVAS, CHALODE, EDAYANNUR POST, KANNUR DISTRICT, PIN-670 595

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BY ADV. SRI.P.K.RAVISANKAR

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RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031

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2 K.K. CHANDRAN, S/O. GOVINDAN, AGED 64 YEARS, KOMATHKANDY HOUSE, NARIKODE, MUZHAPPALA POST, KANNUR DISTRICT, PIN-670 595

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R1 SRI B JAYASURYA-PP SR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-01-2020, THE COURT ON 17-01-2020 PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.45 OF 2020

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R. NARAYANA PISHARADI, J

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Crl.R.P.No. 45 of 2020

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Dated this the 17^th day of January, 2020

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O R D E R

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The revision petitioner is the accused in the case S.T

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No.3319/2012 on the file of the Court of the Additional Chief Judicial Magistrate, Thalassery.

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The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) and convicted him thereunder. The trial court sentenced the petitioner to imprisonment till the rising of the court and to pay a fine of Rs.2,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant.

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The petitioner filed Crl.A.No. 1/2014 before the Court of Session, Thalassery challenging the order of conviction and sentence

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Crl.Rev.Pet.No.45 OF 2020

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passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence and dismissed the appeal.

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Aggrieved by the concurrent findings of guilty, conviction

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and sentence made against him by the courts below, the accused in the case has filed this revision petition.

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Heard the learned counsel for the revision petitioner.

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The case of the complainant is as follows: During the first week of April, 2011 the accused borrowed an amount of Rs.2,50,000/from the complainant promising that he would repay the amount within three months. He did not repay the amount within time. In the second week of August, 2011 the accused issued a cheque dated 17.08.2011 for Rs.2,50,000/- to the complainant in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He sent a reply to the complainant raising false contentions. He did not pay the amount of the cheque.

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During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P6 documents were marked on his side. No evidence was adduced by the accused.

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Crl.Rev.Pet.No.45 OF 2020

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When examined as PW1, the complainant gave evidence in tune with the averments in the complaint. He gave evidence that the accused borrowed an amount of Rs.2,50,000/- from him in the first week of April, 2011. He also gave evidence that the accused issued Ext.P1 cheque to him in discharge of the liability. He has given evidence that the accused brought the cheque filled up and that the accused signed the cheque in his presence and gave it to him.

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Execution of Ext.P1 cheque by the accused stands proved by the evidence of PW1. Then, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption under Section 139 of the Act.

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The plea of the accused was as follows: The accused was the manager of the petrol pump conducted by his brother-in-law. The complainant was the watchman in that petrol pump. The accused had kept a signed blank cheque in the petrol pump. The complainant committed theft of the cheque and misused it and filed the case.

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No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out in the cross-examination of PW1 to prove that the plea of the accused is probable.

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The accused has no case that he had reported loss of the cheque to the bank. The accused has no case that he had filed any

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Crl.Rev.Pet.No.45 OF 2020

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complaint to the police regarding the theft of the cheque. 13.

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Learned counsel for the petitioner submitted that it was only after the petitioner got notice from the complainant that he came to know about the loss of the cheque. It is difficult to believe this submission. Even if it is accepted that the accused came to know about the loss of the cheque only after he received notice from the complainant, there is no material to show that he took any legal action against the complainant for committing theft of the cheque. These circumstances indicate that the plea of the accused is not at all probable and that it is not true.

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A plea was raised before the courts below that the complainant had no financial capacity to advance an amount of Rs.2,50,000/-. When examined as PW1, the complainant gave evidence that he was conducting timber business and also that he had kept money for construction of his house. There is nothing to disbelieve the evidence of PW1 in this regard.

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Moreover, when the accused could not even raise a probable plea with regard to how his cheque happened to be in the possession of the complainant, the complainant has no obligation to prove source of the money. The complainant is not required to prove the debt as if in a civil case (See Uttam Ram v. Devinder Singh :

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Crl.Rev.Pet.No.45 OF 2020

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(2019) 10 SCC 287) . Absence of documentary evidence to show the source of funds with the complainant to advance the loan is not a relevant consideration in view of the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the Act (See Rohitbhai Jivanlal Patel v. State of Gujarat : AIR 2019 SC 1876).

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Learned counsel for the petitioner submitted that the entries in the cheque are in a different ink and it would indicate the probability of the case set up by the accused. There is no merit in this contention. PW1 has specifically stated that the accused brought the cheque filled up and that the accused signed the cheque in his presence. Therefore, the complainant is not expected to explain the difference in the ink or the handwriting of the entries in the cheque.

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It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 of the Act would be attracted (See Bir Singh v. Mukesh Kumar: AIR 2019 SC 2446 ).

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The courts below have properly analysed the evidence in the case and come to the right conclusion. There is no illegality, impropriety or perversity pointed out by the learned counsel for the

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Crl.Rev.Pet.No.45 OF 2020

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petitioner in the appreciation of evidence by the courts below. There is no ground to interfere with the concurrent findings entered against the petitioner by the courts below, in exercise of the revisional jurisdiction of this Court. Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed.

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The trial court has shown maximum leniency in the matter of imposing sentence on the petitioner/accused. The sentence imposed on him also does not call for interference by this Court.

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Consequently, the revision petition is dismissed. Conviction of the petitioner/accused for the offence under Section 138 of the Act and the sentence imposed on him by the trial court, which stand affirmed by the appellate court, are confirmed. However, the petitioner/accused is granted a period of four months from today to remit the amount of fine in the trial court.

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Sd/-R. NARAYANA PISHARADI

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JUDGE

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lsn

T.Sunilkumar v. State of Kerala

Case brief

What is this about?

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T.Sunilkumar v. State of Kerala

Case brief

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