Kerala High Court
B.Madhu vs Anil Kumar & Another on 19 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
CRL.REV.PET NO. 1538 OF 2011
AGAINST THE ORDER/JUDGMENT CRA 684/2008 OF II ADDITIONAL DISTRICT
COURT,THIRUVANANTHAPURAM
ST 161/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
I,THIRUVANANTHAPURAM
REVISION PETITIONER/S:
B.MADHU, S/O.BHANU NADAR, MADHU BHAVAN
VILAVOORKAL,MALAYAM PO,THIRUVANANTHAPURAM.
BY ADV SRI.R.T.PRADEEP
RESPONDENT/S:
1 ANIL KUMAR , S/O.SUKUMARAN NAIR
TC 21/669,NALINAM,PALLITHANAM LANE,KARAMANA,,
THIRUVANANTHAPURAM. 695002
2 STATE OF KERALA REP.BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADVS.
SMT.K.R.RIJA -R1
SRI.SUMAN CHAKRAVARTHY-R1
OTHER PRESENT:
SMT.NIMA JACOB, PUBLIC PROSECUTOR -R2
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Crl.R.P. No.1538 of 2011
C. S. DIAS, J.
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Crl.R.P. No.1538 of 2011
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Dated this the 19th day of October, 2023
ORDER
The revision petitioner calls in question the correctness
and legality of the judgments in Crl.A No.684/2008 passed by
the Court of the Additional Sessions Judge-II,
Thiruvananthapuram (Appellate Court) and in S.T
No.161/2006 passed by the Court of the Judicial Magistrate of
First Class-I, Thiruvananthapuram (Trial Court), holding the
revision petitioner guilty for the offence under Section 138 of
the Negotiable Instruments Act (for brevity, "N.I.Act") and
convicting and sentencing him for the said offence. The
revision petitioner was the accused and the first respondent
was the complainant before the Trial Court. For the sake of
Crl.R.P. No.1538 of 2011
convenience, the parties are referred to as per their status in
the complaint.
Relevant facts
2. The complaint was filed alleging that the accused had
in discharge of a legally enforceable debt issued Ext P1
cheque dated 24.11.2007 in favour of the complainant for an
amount of Rs.3,00,000/-. The cheque, on presentation to the
bank for collection, got dishonoured by Ext.P2 memorandum
due to 'insufficient funds' in the bank account of the accused.
Despite issuing Ext P3 statutory lawyer notice to the accused,
he failed to pay the demanded amount. Instead, the accused
issued Ext P6 reply notice. Hence, the accused committed the
above offence.
3. The learned Magistrate took cognizance of the
offence. The accused denied the substance of accusations
made against him. In the Trial, the complainant examined
Crl.R.P. No.1538 of 2011
himself as PW1 and Exts.P1 to P6 were marked in evidence.
The accused denied the incriminating circumstances appearing
in the evidence against him in the questioning under Section
313 of the Code of Criminal Procedure ( in short, Code). The
accused examined DWs 1 to 4, including himself as DW4, and
marked Exts D1 to D3 in evidence.
Trial Court Judgment
4. The learned Magistrate, after analysing the materials
on record, found the accused guilty for the offence under
Sec.138 of the N.I Act and convicted and sentenced him to
undergo simple imprisonment for a period of six months and
pay a fine of Rs.3,00,000/- and in default to undergo simple
imprisonment for a further period of three months. If the fine
amount was realised, the same to be paid as compensation to
the complainant under Sec.357(1) (b) of the Code.
Crl.R.P. No.1538 of 2011
5. Aggrieved by the said judgment, the accused
preferred Crl.A No.684/2008 before the Appellate Court.
Appellate Court judgment
6. The Appellate Court, after re-appreciating the
materials placed on record, by the impugned judgment,
confirmed the conviction but modified the sentence by
reducing the substantive sentence to, till the rising of the Court
and directed the accused to pay a fine of Rs.3,05,000/- and in
default to undergo simple imprisonment for a period of six
months.
7. It is assailing the concurrent judgments passed by
the court below, the present revision petition is filed.
8. Heard;Sri.R.T Pradeep, the learned counsel
appearing for the revision petitioner; Sri.Suman Chakravarthy,
the learned counsel appearing for the first respondent and
Crl.R.P. No.1538 of 2011
Smt.Nima Jacob, the learned Public Prosecutor appearing for
the second respondent/State.
9. Is there any illegality, impropriety or irregularity in
the judgments passed by the courts below?
10. The revisional jurisdiction of this Court is to be
sparingly exercised in the cases of exceptional rarity, when
there is patent error, manifest illegality and total misreading of
the records.
11. The case of the complainant is that the accused had
borrowed a sum of Rs.3,00,000/- from him and had issued Ext
P1 cheque in discharge of the said liability. The cheque, on
presentation to the bank for payment, got returned due to
'insufficiency of funds' in the account of the accused. Despite
making a demand for repayment of the money, the accused
failed to pay the amount. Hence, the accused committed the
above offence.
Crl.R.P. No.1538 of 2011
12. The accused sent Ext P6 reply notice and also got
himself and three other witnesses examined as DWs 1 to 4 and
marked Exts D1 to D4 at the defence evidence stage.
13. The accused's defence is that he had no business
transaction with the complainant. He had given signed blank
cheques to his brother (DW2) for the purpose of his vegetable
business. DW2 had borrowed a sum of Rs.50,000/- from one
Anilkumar and had repaid the amount to the said person.
However, Anilkumar demanded for more money. Thereafter,
Anilkumar with some goondas went to the shop of DW2 and
assaulted him and took away all the signed blank cheques that
were kept in the shop. One of the said cheques belonging to
the accused was handed over to the complainant, and the
present complaint was filed. The accused also examined
DW1, a staff of DW2 and DW3 - the Advocate who issued
Ext D1 notice to Anilkumar threatening to initiate proceedings
Crl.R.P. No.1538 of 2011
against him. Hence, according to the accused, Ext P1 cheque
was not issued towards a legally enforceable debt.
14. A negotiable instrument, which includes a cheque,
carries the presumption of consideration under Sections 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".
15. A three-Judge Bench of the Hon'ble Supreme Court
in Rangappa v. Sri.Mohan [2010 KHC 4325], while dealing
with Section 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
Crl.R.P. No.1538 of 2011
include the 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 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."
16. Recently, a three-Judge Bench of the Hon'ble
Supreme Court in Kalamani Tex and Anr v. P.
Balasubramanian [2021 (2) KHC 517] has reiterated the legal
position and doctrine of the reverse onus. It is apposite to
Crl.R.P. No.1538 of 2011
extract the relevant paragraphs, which declares 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 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)."
17. In addition to above declaration of law in Bir Singh
and Mukesh Kumar [ 2019 (1) KHC 774 SC] the Hon'ble
Supreme Court has held that even if a signed black cheque is
voluntarily presented to a payee towards some payment and
the payee fills up the amount and other particulars, the same
would not obliterate the presumption under Sec.139 of the N.I
Act, unless there is cogent evidence to discharge the said
burden.
Crl.R.P. No.1538 of 2011
18. In the case at hand, admittedly, the accused was a
Headconstable in the Kerala Police service. He has alleged
that for the business purpose of his brother (DW2), he gave
signed blank cheques to DW2, who had business transactions
with Anilkumar. The said Anilkumar allegedly trespassed into
DW2's shop and stole the cheques. Instead of complaining to
the Police, DW2 issued Ext D1 lawyer notice to Anilkumar
threatening to initiate proceedings. But no action is seen
taken. It is making use of one of the stolen cheques, the
complainant launched the prosecution. Therefore, there is no
legally enforceable debt payable by the revision
petitioner/accused to the first respondent/complainant.
19. The courts below, after appreciating the materials
on record, have concurrently concluded that the defence set
up by the accused is highly improbable, especially taking into
account the fact that he was a Police officer. If at all his
cheque was stolen, he would have certainly initiated criminal
Crl.R.P. No.1538 of 2011
proceedings. Instead, he remained silent and made his
brother(DW2) to issue a lawyer notice to the said Anilkumar.
I fully concur with the above finding with the courts below.
20. After bestowing my anxious consideration 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 courts below to take a
contrary view. Thus, I confirm the conviction and sentence
passed by the courts below.
In the result,
(i) The revision petition is dismissed.
(ii) The conviction and sentence passed by the
courts below are confirmed.
(iii) The revision petitioner is directed to appear before
the Trial Court on or before 18.12.2023 to undergo
substantive sentence and pay the fine amount, failing
which to undergo the default sentence.
Crl.R.P. No.1538 of 2011
(iv) Needless to mention, if the revision petitioner has
already deposited any amount before the court below,
only the balance amount need be deposited.
(v) In failure of the revision petitioner to appear before
the Trial Court to undergo the sentence and pay the
compensation, the Trial Court shall execute this order in
accordance with law.
(vi) The execution of the sentence shall stand deferred till
18.12.2023.
(vii) If the fine amount is realised, the same shall be
released to the 1st respondent/complainant as
compensation under Section 357(1) (b) of the Code and
in accordance with law.
(viii). The Registry is directed to forthwith forward a
copy of this order to the Trial Court for compliance.
sd/-
sks/19.10.23 C.S.DIAS, JUDGE
