Noushad Babu vs State Of Kerala
2023 Latest Caselaw 11627 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
 THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945
                   CRL.REV.PET NO. 1463 OF 2011


   AGAINST THE JUDGMENT DATED 19.04.2011 IN CRA 197/2009 OF
         ADDITIONAL SESSIONS COURT (ADHOC)-II, MANJERI

     AGAINST THE JUDGMENT DATE 20.05.2009 IN DCC 158/2008 OF
      JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA


REVISION PETITIONER/APPELLANT/ACCUSED:-

          NOUSHAD BABU,
          S/O. MR. VEERAN,
          PATTASSERY HOUSE,
          PONNYAKURSI PO,
          PERINTHALMANNA,
          MALAPPURAM DISTRICT.

          BY ADVS.     SRI.C.A.MAJEED
                       SRI.K.H.ASIF


RESPONDENTS/RESPONDENTS/COMPLAINANT:

    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          ERNAKULAM.

    2     T.RAMADAS,
          S/O.MR.KRISHNAN,
          THAZHATHETHIL HOUSE,
          KADUNGAPURAM PO,
          KOLATHUR,PETINTHALMANNA TALUK,
          MALAPPURAM DISTRICT.


OTHER PRESENT:

          sr pp smt seetha s

      THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.R.P.No.1463/2011

                                   -:2:-




                 Dated this the 16th day of November,2023

                              ORDER

The revision petition is filed calling in question the

legality and correctness of the judgment in

Crl.A.No.197/2009 of the Court of the Sessions Judge,

Manjeri (Appellate Court), confirming the judgment in

C.C.No.158/2008 of the Court of the Judicial First Class

Magistrate-II, Perinthalmanna(Trial Court), holding

the revision petitioner guilty and convicting and

sentencing him for the offence under Section 138 of

the Negotiable Instruments Act, 1881 ('N.I. Act', for

the sake of brevity). The revision petitioner was the

accused and the second respondent was the

complainant before the Trial Court.

Relevant Factual Matrix:

2. The first respondent had filed the complaint Crl.R.P.No.1463/2011

before the Trial Court, alleging that the revision

petitioner had issued Ext P2 cheque in discharge of a

legally enforceable debt of Rs.1,50,000/-. The cheque

on presentation to the bank for collection, got

dishonoured by Ext P3 memorandum due to

'insufficient funds' in the bank account of the revision

petitioner. Although the second respondent had issued

Ext P4 statutory lawyer notice, the notice was returned

with an endorsement that 'the addressee left'. The

revision petitioner failed to pay the demanded amount.

Hence, he committed the above offence.

3. The learned Magistrate took cognizance of

the offence against the revision petitioner. The revision

petitioner denied the substance of accusation read over

to him. In the trial, the complainant was examined as

PW1 and Exts P1 to P4 were marked in evidence. The

revision petitioner had denied the incriminating

circumstances appearing against him in the Crl.R.P.No.1463/2011

questioning under Section 313 of the Code of Criminal

Procedure, 1973('Code', for the sake of brevity). The

revision petitioner got himself examined as DW1 and

marked Ext D1 series subject to proof.

Trial Court judgment:

4. The Trial Court, after analysing the materials

placed on record, found the revision petitioner guilty

and convicted him for the offence under Section 138 of

the N.I. Act and sentenced him to undergo simple

imprisonment for a period of four months and to pay a

compensation of Rs.1,50,000/-, and in default to

undergo simple imprisonment for a further period of

three months.

5. Aggrieved by the said judgment, the revision

petitioner filed Criminal Appeal No.197/2009 before

the Appellate Court.

Appellate Court judgment:

6. The Appellate Court, after re-appreciating the Crl.R.P.No.1463/2011

materials placed on record, by the impugned judgment,

confirmed the conviction; but modified the sentence by

reducing the substantive sentence to one day(till the

rising of the Court) and maintained the compensation

part in tact.

7. It is challenging the concurrent judgments of

the courts below; the revision petition is filed.

8. Heard; Sri. C.A. Majeed, the learned counsel

appearing for the revision petitioner and Smt.Seetha

S., the learned Senior Public Prosecutor appearing for

the first respondent - State.

9. The learned counsel appearing for the

revision petitioner argued that the impugned

judgments are erroneous on three grounds:

(i)Notice was not properly served on the revision petitioner;

(ii)There was no legally enforceable debt as per Ext P2 cheque;

Crl.R.P.No.1463/2011

&

(iii)The revision petitioner had arranged the Visa for the second respondent. Therefore, his liability stood discharged.

10. The question is whether there is any illegality,

impropriety or irregularity in the judgments of the

courts below.

11. The second respondent's case is that the

revision petitioner had in discharge of a legally

enforceable debt, issued Ext P2 cheque on the basis of

Ext P1 agreement and the cheque got dishonoured due

to insufficiency of funds in the bank account of the

revision petitioner. Although the second respondent

issued Ext P4 statutory lawyer notice, the notice was

returned with an endorsement as 'the addressee left'.

12. The first contention of the revision petitioner

is that, there was no proper service of notice as

contemplated under the proviso (b) to Section 138 of Crl.R.P.No.1463/2011

the N.I. Act. Proviso (b) to Section 138 of the N.I. Act

only prescribes that the payee or the holder in due

course has to make a demand for the payment of the

cheque amount by giving a notice in writing within 30

days from the date of receipt of information.

13. In the case on hand, the first respondent had

issued Ext P4 statutory lawyer notice by registered

post in the following address:

"Noushad Babu, S/o. Veeran, Pattassery House, Ponp.o.ponnaikurissi, Perintalmanna"

14. Ext P4 statutory lawyer notice was sent by

registered post on 16.03.2007. The registered cover

has been returned with an endorsement 'addressee

left' on 17.03.2007 i.e., the very next day.

15. The learned counsel appearing for the

revision petitioner relied on the decision of this Court

in Padmanabhan v. Vasudevan Namboodiri [2010 Crl.R.P.No.1463/2011

KHC 6223] and vehemently argued that there was no

proper service of notice on the revision petitioner as

provided under proviso (b) to Section 138 of the N.I.

Act. Therefore, the concurrent judgments are to be set

aside and the revision petitioner has to be acquitted.

16. On a careful reading of the address of the

revision petitioner in the cause title of the Appellate

Court judgment and the cause title of the

memorandum of the revision petition, shows that it is

the same address as shown in Ext P4 registered notice.

The revision petitioner also does not dispute the fact

he is not residing in the address shown in Ext P4

registered notice.

17. This Court in Abdul Hameed M. K. v. State

of Kerala and Another [2020 (1) KLT 739] while

dealing with a case of an identical nature has held as

follows:-

"8. 'Receipt of the notice' by the drawer of the cheque Crl.R.P.No.1463/2011

need not be actual receipt of the notice. It can also be deemed receipt. Such deemed receipt is envisaged by S.27 of the General Clauses Act which provides for raising a presumption that service of notice has been effected when it is sent to the correct address by registered post.

9. In view of the presumption under S.27 of the General Clauses Act, when it is stated in the complaint that notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of the proviso to S.138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under S.138 of the Act, the Court is required to be prima facie satisfied that mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect (See Alavi Haji Crl.R.P.No.1463/2011

v. Palapetty Muhammed).

10. In Alavi Haji (supra), it has also been held that, S.114 of the Indian Evidence Act read with illustration (f) thereunder enables the Court to presume that, in the common course of natural events, the communication would have been delivered at the address of the addressee."

18. In the instant case, the revision petitioner has

not taken any steps to examine the postman, who made

the endorsement on Ext P4. The statutory

presumptions under Section 27 of the General Clause

Act,1897, and Section 114 of the Indian Evidence Act,

1872, stares at the revision petitioner. The onus of

proof was on the revision petitioner to prove that he

was not residing in the address on the date Ext P4

registered letter was brought to his residence for

service of notice. Therefore, the second respondent has

fulfilled the statutory stipulation of sending Ext P4

statutory lawyer notice to the address of the revision

petitioner and making a demand in writing as

contemplated under proviso (b) of Section 138 of the Crl.R.P.No.1463/2011

N.I. Act. Hence, I am of the view that the said

contention is untenable and is only liable to be

rejected.

19. The next two contentions are that, as the

revision petitioner had fulfilled his obligation by

securing a Visa for the second respondent and his

friend named, Raju, there is no legally enforceable

debt covered by Ext P2 cheque.

20. The revision petitioner admits that Ext P1

agreement and Ext P2 cheque were executed by him.

21. In Bir Singh v. Mukesh Kumar [2019 (1)

KHC 774 SC], the Hon'ble Supreme Court has

categorically declared the law that, even if a signed

blank cheque is voluntarily presented to a payee

towards some payment and the payee filling up the

amount and other particulars, the same will not

invalidate the cheque. Even then, the onus of proof

would be on the accused to prove that the cheque was Crl.R.P.No.1463/2011

not in discharge of a debt or liability by adducing

evidence. In the absence of cogent evidence, the

reverse onus of proof cannot be discharged.

22. Coming back to the facts of the case, the

revision petitioner has admitted in his

cross-examination that he received Rs.1,50,000/- from

the second respondent for the purpose of issuing a Visa

in favour of the second respondent and his friend -

Raju. He also admits the execution of Ext P1

agreement and Ext P2 cheque. His defence is that,

since he received the Visa from abroad, he has fulfilled

his obligations as per Ext P1 agreement. Therefore,

there was no legally enforceable debt as per Ext P2

cheque.

23. On a careful scrutiny of the oral testimonies

of PW1 & DW1, it is seen that Ext D1 series are only

photocopies of the alleged visas, which were marked

subject to proof. Neither the originals of the said Crl.R.P.No.1463/2011

documents were not produced nor did the revision

petitioner prove the said documents through its author.

24. It is well settled that mere marking of a

document will not make it admissible in evidence.

25. Despite the Trial Court marking Ext D1

series subject to proof, the revision petitioner has not

proved the document. Therefore, the same cannot be

taken on its face value. Even assuming that Ext D1

series were the visas secured by the revision petitioner

as per Ext P1 agreement, there is nothing on record to

show that the revision petitioner had informed the

second respondent regarding the receipt of visas and

he fulfilled his obligation. As long as there is no

material to prove that the revision petitioner has

fulfilled his obligation, it cannot be said for a moment

that Ext P2 cheque was no longer legally enforceable.

26. A negotiable instrument, which includes a

cheque, carries the presumption of consideration Crl.R.P.No.1463/2011

under Secs.118(a) and 139 of the N.I Act. It is

profitable to extract the said relevant provisions:

"118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made;-

(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

139. Presumption in favour of holder. --It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.

27. A three-Judge Bench of the Hon'ble Supreme

Court in Rangappa vs. Sri.Mohan [2010 KHC 4325],

while dealing with Sec.139 of the N.I Act has

conceptualised the doctrine of 'reverse onus', by

holding thus:

" 18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed include the Crl.R.P.No.1463/2011

existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses Crl.R.P.No.1463/2011

usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own.

(emphasis given)

28. Recently, a three-Judge Bench of the Hon'ble

Supreme Court in Kalamani Tex and Anr vs. P.

Balasubramanian [2021 (2) KHC 517] has reiterated

the above legal position and doctrine of the reverse

onus. It is apposite to extract the relevant paragraphs,

which declare the law on the point in the following

terms:

"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court Crl.R.P.No.1463/2011

completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC

243)."

(emphasis supplied)

29. As already observed, the revision petitioner

does not dispute that he has drawn Ext P2 cheque.

In view of the law referred to above, the reverse onus

of proof under Section 139 of the N.I Act was entirely

on the shoulders of the revision petitioner.

30. On an appreciation of the materials placed

on record and the findings rendered by the courts

below, I do not find any error, illegality or

impropriety in the conclusions arrived at by the Crl.R.P.No.1463/2011

courts below in holding the revision petitioner guilty

for the offence under Section 138 of the N.I Act and

consequentially convicting and sentencing him for

the offence. Thus, I confirm the concurrent

conviction and sentence passed by the courts below.

31. At the said point of time, the learned counsel

appearing for the revision petitioner prayed that the

revision petitioner may be granted at least two months'

time to pay the compensation amount. As the revision

petition is of the year 2011 and the same has been

pending consideration till date, I am of the view that

the revision petitioner can be granted one month's

time to pay the compensation amount, which would

meet the ends of justice.

32. In the result;

(i) The revision petition is dismissed;

(ii) The conviction and sentence passed by the courts below are confirmed;

Crl.R.P.No.1463/2011

(iii) The revision petitioner is directed to appear before the Trial Court on 15.12.2023 to undergo the sentence and pay the compensation amount, failing which to undergo the default sentence also.

(iv) Needless to mention, if the revision petitioner has already deposited any amount before the court below, pursuant to the orders of this Court, only the balance amount need be deposited as compensation;

(v) In case of failure of the revision petitioner to appear before the Trial Court and pay the compensation amount and undergo the substantive sentence, the Trial Court shall execute this order.

(vi) Execution of the sentence shall stand suspended till 14.12.2023.

(vii) If the compensation amount is realised, the same shall be released to the second respondent.

Crl.R.P.No.1463/2011

(viii) The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance.

Sd/-

                                     C.S.DIAS,JUDGE
DST/16.11.23                                       //True copy//

                                                   P.A.To Judge