Conviction under Section 138 NI Act for two dishonoured cheques issued towards value of gold ornaments was challenged in revision. The court held the accused failed to rebut the Section 139 presumption, declined to disturb concurrent findings, but substituted imprisonment with enhanced fines payable as compensation to the complainant.
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.G. AJITHKUMAR
TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945
CRL.REV.PET NO. 348 OF 2019
AGAINST THE JUDGMENT DATED 10.12.2018 IN CRA 243/2015 OF ADDITIONAL SESSIONS COURT-IV, THIRUVANANTHAPURAM AND THE
JUDGMENT DATED 31.07.2015 IN ST 58/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-VII, THIRUVANANTHAPURAM
REVISION PETITIONER/APPELLANT/ACCUSED:
S.R.SIVAKUMAR,
AGED 54 YEARS
T.C.8/919, CHERUVILAKATHU, PARVATHYVILASAM, ARAYALLOR, THIRUMALA P.O, THIRUVANANTHAPURAM.
BY ADV S.CHANDRASEKHARAN NAIR
RESPONDENTS/RESPONDENTS/DEFACTO COMPLAINANT & STATE:
STATE OF KERALA,
R1 BY L.R.DHANUJA
R1 BY ADITHYA RAJEEV R1 BY GIRISH KUMAR M S R2 BY SMT SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 09.01.2024, ALONG WITH Crl.Rev.Pet.349/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945
CRL.REV.PET NO. 349 OF 2019
AGAINST THE JUDGMENT DATED 10.12.2018 IN CRA 244/2015 OF ADDITIONAL SESSIONS COURT-IV, THIRUVANANTHAPURAM AND THE
JUDGMENT DATED 31.07.2015 IN ST 57/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-VII, THIRUVANANTHAPURAM REVISION PETITIONER/APPELLANT/ACCUSED:
S.R.SIVAKUMAR.
AGED 54 YEARS
T.C. 8/919, CHERUVILAKATHU PARVATHYVILASAM, ARAYALLOR, THIRUMALA P.O., THIRUVANANTHAPURAM.
BY ADV S.CHANDRASEKHARAN NAIR
RESPONDENTS/RESPONDENTS/DEFACTO COMPLAINANT & STATE:
STATE OF KERALA,
BY ADVS.
R1 BY ADITHYA RAJEEV R1 BY GIRISH KUMAR M S R2 BY SMT.PUSHPALATHA MK, SR.PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 09.01.2024, ALONG WITH Crl.Rev.Pet.348/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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P.G. AJITHKUMAR, J.
----------------------------------------------------------Crl.R.P.Nos.348 & 349 of 2019
----------------------------------------------------------Dated this the 9th day of January, 2024
O R D E R
These revision petitions arose on a common judgment involving the same parties. Hence, these revision petitions are disposed of by this common order.
of 2014 on the files of the Judicial Magistrate of the First Class-VII, Thiruvananthapuram. The offence alleged is one punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The complaints are filed by the 1st respondent with the following allegations,-
In relation to a transaction concerning gold ornaments, the petitioner had issued two cheques; one for Rs.1,50,000/- and the other for Rs.1,80,000/-. The cheques were presented for encashment, but returned unpaid due to the insufficiency of funds in the account of the petitioner. Demand notices were issued. The petitioner received the notices, but failed to repay the amount.
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9. In Bir Singh v. Mukesh Kumar [(2019) 4 SCC
197] the Apex Court held that a meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee
remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. 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. It was further held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
10. The Apex Court in Basalingappa v. Mudibasappa
[(2019) 5 SCC 418] held that,-
“23. We having noticed the ratio laid down by this Court in above cases on Section 118(a) and 139, we now
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summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.”
Bench of the Apex Court in M/s Kalamani Tex and another
v. P.Balasubramanian [(2021) 5 SCC 283] held that the
N.I.Act mandates that the signature of an accused on the
cheque is established, then the 'reverse onus' clauses become
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operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. A similar view was taken by the Apex Court in Rajesh Jain v.
Ajay Singh [2023 SCC OnLine SC 1275] also. It was held that Section 139 of the N.I. Act requires that the Court 'shall presume' the fact stated therein, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'. In view of the law laid down in the aforesaid decisions, a presumption under Section 139 of the N.I. Act is liable to be drawn in respect of Exts. P2 and P2(a) cheques produced in this case and of course, it is possible for the petitioner to rebut that presumption.
reliance on Joshy P.G. v. Jose Varghese and another [2019 (4) KHC 753] in order to fortify his contention that
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for want of furnishing details of the transaction in the complaint, the evidence of the 1st respondent loses credibility and therefore the prosecution is bound to fail. It was held in the said decision that where the complainant in a prosecution for the offence under Section 138 of the N.I. Act is expected
to state the nature of the debt or liability incurred by the accused and in the absence thereof, the evidence tendered by the complainant does not have credibility. It was, however, further held that the absence of averments in the complaint regarding the nature of debt or liability of the accused does not affect the maintainability of the complainant; but its effect is only that the credibility of the evidence tendered by the complainant would be adversely affected. The petitioner cannot recourse to the aforesaid principle in this case inasmuch as the petitioner himself admitted before the court that there was a transaction as averred in the complaint. What is lacking in the complaint is only the details of the transaction. It was stated in the complaint that concerning the making of gold ornaments the cheques were issued. Further
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details have been stated by the accused and brought out in evidence through his witnesses. In such circumstances, the failure to state the whole details of the transaction in the complaint does not have any adversity to the prosecution case.
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evidence to rebut the presumption under Section 139 of the N.I.Act. He can rely on the evidence let in by the prosecution and circumstances and presumptions arising out of the materials on record for that purpose as held by the Apex Court in Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay [AIR 1961 SC 1316]. It was held that a presumption of law or fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact.
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petitioner did not send any reply. If the gold ornaments were returned and the receipts were received back, that was the first occasion for the petitioner to inform that fact and ask the first respondent to desist from initiating prosecution, but he failed. From the evidence on record, it is explicit that the 1st respondent denied receipt of gold ornaments and issuance of the receipt for receiving back the gold ornaments. His case is that the gold ornaments were not returned and towards the value of the ornaments Exts.P2 and P2(a) cheques were issued. If such a receipt was issued as contained in Ext.D2, PW1 should have been confronted with that document during her examination. Ext.D1 is said to be a receipt returned by PW1. That document was also not confronted to PW1 at the defence evidence stage. That makes his evidence doubtful. Exts.D1 and D2 have not been duly proved. In such circumstances, producing such documents without any formal authority is insufficient to prove the fact proposed to be true. In such circumstances, I am of the view that the petitioner totally failed to substantiate that the gold ornaments were
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returned as he claimed. Similarly, the petitioner failed to substantiate that Exts.P2 and P2(a) were in fact issued as security. He thus failed to rebut the presumption available in respect of Exts.P2 and P2(a).
Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. [See: State of Kerala
v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015) 3 SCC 123; Kishan Rao v. Shankargouda (2018) 8 SCC 165].
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two months in each case. If the fine amounts are realised, the same shall be paid to the 1st respondent as compensation under Section 357(1)(b) of the Code.
Sd/-
P.G. AJITHKUMAR, JUDGE
dxy/dkr
2 issues framed by the court
Whether the accused rebutted the presumption under Section 139 NI Act regarding two dishonoured cheques issued allegedly towards value of gold ornaments.
Whether the High Court in revision under Section 401 CrPC could interfere with concurrent findings of conviction by the courts below.
Colour shows how this judgement treated each authority
Bir Singh v. Mukesh KumarRelied on¶9
(2019) 4 SCC 197 · Who else cites this
Basalingappa v. MudibasappaRelied on¶10
(2019) 5 SCC 418 · Who else cites this
M/s Kalamani Tex and another v. P.BalasubramanianRelied on¶11
(2021) 5 SCC 283 · Who else cites this
Rajesh Jain v. Ajay SinghRelied on¶11
2023 SCC OnLine SC 1275 · Who else cites this
Joshy P.G. v. Jose Varghese and anotherDistinguished¶12
2019 (4) KHC 753
Kundan Lal Rallaram v. Custodian, Evacuee Property, BombayRelied on¶14
AIR 1961 SC 1316 · Who else cites this
Vinay Parulekar v. Pramod MeshramRelied on¶15
2008 CriLJ 2405 · Who else cites this
Kamala S. v. Vidyadharan M.J. and anotherRelied on¶15
(2007) 5 SCC 264 · Who else cites this
State of Kerala v. Puttumana Illath Jathavedan NamboodiriRelied on¶17
(1999) 2 SCC 452 · Who else cites this
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao PhalkeRelied on¶17
(2015) 3 SCC 123 · Who else cites this
Kishan Rao v. ShankargoudaRelied on¶17
(2018) 8 SCC 165 · Who else cites this
5 provisions across 2 enactments
S.R. Sivakumar
Dr. Artist K.G.S Nair
State of Kerala
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
