The High Court bench was hearing a revision petition preferred by convict against the Order of dismissal of appeal filed against the judgement of conviction passed by magistrate under Section 138 of NI Act.
Facts:
The complainant is a company conducting chitty business. The accused had subscribed to two chitties conducted by the complainant company. The accused auctioned both chitties and received the chitty amount. He subsequently made default in payment of the instalments of the chitties. On termination of the chitties, there was outstanding liability from the accused to the complainant company. When the complainant demanded the accused to settle the liability, the accused executed and issued a cheque for Rs.6,13,700/-. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient amount in the account of the accused. Legal notice was sent. He did not reply. He did not pay the amount of the cheque.
During the trial of the case, no evidence was adduced by the accused.
Trial Court’s Decision:
The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and convicted him thereunder. The trial court sentenced the petitioner to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.6,13,700/- and in default of payment of fine, to undergo simple imprisonment for a period of 3 months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant.
Appeal before the Sessions Court
The petitioner filed Criminal Appeal before the Court of Session, Kozhikode challenging the order of conviction and the sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner under Section 138 of the Act but set aside the substantive sentence of imprisonment imposed on him by the trial court and maintained the sentence of fine imposed on him.
Accused approached High Court
Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition.
High Court’s observations
The accused does not dispute the fact that cheque bears his signature. The admission of the accused that the cheque bears his signature, is sufficient to prove the execution of the cheque by the accused.
Once execution of the cheque by the accused is proved by the complainant, 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. The accused did not adduce any evidence to rebut the presumption. Nothing was also brought out in the cross examinations of which would enable the accused to rebut the presumption under Section 139 of the Act.
The plea of the accused is that he had given a signed blank cheque as security at the time of an earlier chitty transaction with the complainant company and that the complainant has misused the aforesaid cheque and filed the case. No evidence was adduced by the accused to prove this plea.
The complainant is not required to prove the debt or liability as in a civil case. The complainant has no obligation to prove the original consideration or transaction unless and until the accused rebuts the presumption under Section 139 of the Act.
A chitty transaction conducted without obtaining the sanction from the Government or without obtaining registration under the statute cannot be characterised as a transaction opposed to public policy or illegal or unlawful. Prosecution on the basis of a cheque, which was issued in discharge of a liability in such transaction, is maintainable.
High Court held:
The courts below have appreciated the evidence and made concurrent findings. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to gross miscarriage of justice.
Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. Consequently, the revision petition is dismissed. The sentence imposed on the petitioner/accused by the appellate court is also confirmed. However, the petitioner/accused is granted a period of six months from today to remit the fine amount in the trial court.
Bench: Justice R. Narayana Pisharadi, at Ernakulam
Case Title: T.K.Mathai vs Gokulam Chits And Finance Co. (P)
Case Details: Crl.Rev.Pet.No.321 OF 2020
Counsel for Petitioner/Convict: Adv. Denu Joseph
Counsel for Respondent: C.K. Prasad, PP
Read the Judgement:
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