Kerala High Court
M. Ramakrishna Pillai vs State Of Kerala on 29 January, 2025
Crl.R.P.No.664 of 2018 1 2025:KER:6818
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.REV.PET NO. 664 OF 2018
AGAINST THE JUDGMENT IN Crl.A NO.79 OF 2016 OF I
ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE JUDGMENT DATED IN CC NO.1012 OF 2014 OF SPECIAL COURT OF
JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF CASES U/S.138
NI ACT, THIRUVANANTHAPURAM
REVISION PETITIONER/APPELLANT:
M. RAMAKRISHNA PILLAI
AGED 58 YEARS
S/O. LATE MADHAVAN PILLAI, HINDU, AGED 58 YEARS,
RESIDING AT T.C.29/539 MANJUSHA, KAVARADI JUNCTION,
PETTAH P.O., THIRUVANANTHAPURAM.
BY ADVS.
SRI.M.RAMASWAMY PILLAI
SMT.PREETHY R. NAIR
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 P. MOHANAN
S/O. PADMANABHAN, HINDU, RESIDING AT LATHA HUT,
G.K. GARDENS, G.K.JUNCTION, VALLAKADAVU P.O.,
THIRUVANANTHAPURAM, PIN - 695 008.
R1 BY SRI.SANAL P.RAJ- PUBLIC PROSECUTOR
R2 BY SRI.J.HARIKUMAR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 22.1.2025, THE COURT ON 29.01.2025 DELIVERED THE
FOLLOWING:
Crl.R.P.No.664 of 2018 2 2025:KER:6818
M.B.SNEHALATHA, J
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Crl.R.P.No.664 of 2018
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Dated this the 29th January 2025
ORDER
This revision petition has been filed by the accused assailing
the judgment of conviction and sentence in Crl.A No.79/2016 on the
file of the Additional Sessions Court, Thiruvananthapuram by which
the conviction and sentence passed against the accused by the
Judicial First Class Magistrate Court XII, Thiruvananthapuram in C.C.
No.1012/2014 for the offence punishable under Section 138 of
Negotiable Instruments Act, 1881 (for short 'N.I.Act') was confirmed
by the Sessions Court.
2. The parties shall be referred to as the complainant
and the accused as shown in C.C.No.1012/2014.
3. The case of the complainant in a nutshell is that
the accused borrowed an amount of ₹1,50,000/- from him on
Crl.R.P.No.664 of 2018 3 2025:KER:6818
23.3.2013 and in discharge of the said liability, accused issued
Ext.P1 cheque. Upon presentation of Ext.P1 cheque, it was returned
dishonoured stating the reason "No such account". In spite of
receipt of Ext.P3 notice, accused failed to pay the amount covered
by the cheque and thereby committed the offence punishable under
Section 138 of N.I Act.
4. Accused denied the transaction and denied the
issuance of Ext.P1 cheque to the complainant in discharge of any
debt or liability.
5. After trial, the learned Magistrate found the
accused guilty of the offence punishable under Section 138 of N.I
Act and he was convicted and sentenced to undergo simple
imprisonment till rising of the court and to pay a compensation of
₹1,50,000/- to the complainant under Section 357(3) Cr.P.C. In
default of payment of fine, to undergo simple imprisonment for one
month. Appeal preferred by the accused as Crl.A No.79/2016 was
dismissed by the Sessions Court, Thiruvananthapuram confirming
the conviction and sentence passed by the learned Magistrate.
6. The point for consideration in this revision is
whether the impugned judgment of conviction and sentence needs
Crl.R.P.No.664 of 2018 4 2025:KER:6818
any interference by this Court.
7. The complainant who was examined as PW1 has
testified that the accused borrowed an amount of ₹1,50,000/- from
him and in discharge of the said liability, accused issued Ext.P1
cheque drawn on Allahabad Bank, Thiruvananthapuram Branch.
Though the complainant presented Ext.P1 cheque for collection, it
was dishonoured stating the reason "No such account". Ext.P2 is
the memo. Upon receipt of Ext.P2 dishonour memo from the bank,
complainant sent a lawyer notice to the accused on 27.4.2013.
Ext.P3 is the copy of the notice. Accused accepted the notice on
30.4.2013. Ext.P5 is the acknowledgement card. Ext.P6 is the
reply sent by the accused.
8. PW2 who was examined on the side of the
complainant has also testified that on 23.3.2013 the accused
borrowed an amount of ₹1,50,000/- from the complainant and he
had witnessed the said transaction between them.
9. Ext.P2 memo issued from the bank would show
that Ext.P1 cheque was dishonoured stating the reason 'No such
account'. Accused, who was examined as DW1 testified that he has
not borrowed any amount from the complainant and has not issued
Crl.R.P.No.664 of 2018 5 2025:KER:6818
Ext.P1 cheque. He has further testified that Ext.P1 cheque was a
cheque of the partnership firm conducted by him along with his
father and the said account was closed during 2005-2006. He has
further testified that except the signature in Ext.P1 cheque, the
other contents were filled up by the complainant. His further
version is that his signed cheque which was misappropriated by
someone received at the hands of the complainant who misused the
same. According to him, there was no transaction between him and
the complainant and he has not issued Ext.P1 cheque to the
complainant.
10. Immediately we can have a look at Ext.P6 reply
notice sent by the accused. In Ext.P6 reply notice he has stated
that his signed blank cheque was somehow misappropriated by the
complainant and misused the same. In Ext.P6 reply notice, the
accused has further stated that he was running a business at Chala,
Thiruvananthapuram and when the business went into loss in 2008,
he closed his account and surrendered all the cheque leaves in his
possession to the bank. If the case canvassed by the accused in his
reply notice that all the unused cheques in his possession were
returned to the bank at the time of closure of the account is
Crl.R.P.No.664 of 2018 6 2025:KER:6818
accepted as true, then the question of misappropriation of signed
blank cheque by the complainant does not arise. It is to be borne in
mind that during cross-examination, the version of the accused is
that he was running a partnership business with his father; that his
father died in the year 2009. Though the accused has raised a
contention that 'M/s.Ganesh Stores' run by him was a partnership
firm, accused failed to produce any document to show that it was a
partnership firm and there were other partners. In this context, it is
also to be borne in mind that neither in Ext.P6 reply notice nor at
the time of evidence, accused has no case that Ext.P1 cheque was
issued in discharge of any debt or liability of M/s.'Ganesh Stores' run
by him. No such case was canvassed by him. On the other hand,
while examining as DW1 his case was that Ext.P1 was a blank
signed cheque kept in his shop which somehow reached at the
hands of the complainant and the same was misused by the
complainant. In his examination under Section 313 Cr.P.C accused
would contend that PW2, who was a former employee of his shop
misappropriated the signed blank cheque kept in the shop run by
him and the complainant colluding with PW2 Radhakrishnan Nair
misused the said cheque and instituted the complaint. Further, he
Crl.R.P.No.664 of 2018 7 2025:KER:6818
has raised a contention that M/s.Ganesh Stores was a partnership
business conducted by him along with others. But during cross-
examination, his case was that it was run by him along with his
father and his father died in the year 2009. In reply notice, he has
stated that Ganesh Stores was being run by him. Thus, it can be
seen that the accused has got inconsistent stand regarding the
ownership of Ganesh Stores. So, the argument put forward by the
learned counsel for the accused that the complaint filed without
'Ganesh Stores' in the party array is not maintainable, cannot be
accepted. Accused who admit his signature in Ext.P1 cheque has no
case that Ext.P1 cheque was issued by him in his capacity as the
partner of M/s.'Ganesh Stores'. When no such case was canvassed
by the accused, he cannot contend that 'Ganesh Stores' must be in
the party array.
11. The evidence on record would show that the
accused borrowed an amount of ₹1,50,000/- from the complainant
and issued Ext.P1 cheque in discharge of the said liability. The mere
fact that in Ext.P1 cheque, accused has affixed a seal describing
himself as the Managing Partner of M/s.Ganesh Stores is not a
ground to hold that Ext.P1 cheque was issued by a partnership firm
Crl.R.P.No.664 of 2018 8 2025:KER:6818
unless there is evidence to the contrary to establish that there
existed such a partnership firm and there were other partners also.
12. In Hiten P.Dalal v. Bratindranath Banerjee [(2001
(6) SCC 16), the Apex Court held that both Sections 138 and 139 of
N.I.Act, 1881 requires that the Court shall presume the liability of
the drawer of the cheque for the amounts for which the cheques are
drawn.
13. In view of the express provision of Section 118 of N.I.
Act, it shall be presumed until the contrary is proved that every
negotiable instrument was made or drawn for consideration. As per
Section 139 of N.I.Act, a presumption must be drawn that the
holder of the cheque received the cheque, of the nature referred to
in Section 138, for the discharge of any debt or other liability unless
the contrary is proved that there was no legally enforceable debt or
liability. It is a presumption of law. Of course, the presumption
under Section 139 of N.I Act is a rebuttable presumption. But the
accused failed to rebut the said presumption. Per contra, the
complainant has succeeded in establishing that the accused
borrowed ₹1,50,000/- from him and in discharge of the said liability
he issued Ext.P1 cheque. Therefore, there are absolutely no
Crl.R.P.No.664 of 2018 9 2025:KER:6818
grounds to interfere with the finding rendered by the learned
Magistrate and the learned Sessions Judge that the accused has
committed the offence punishable under Section 138 of the N.I Act.
The sentence passed by the trial court which was confirmed in
appeal do not warrant any interference by this Court. Accordingly,
the conviction and sentence passed against the accused stands
confirmed.
14. The revision petition is devoid of any merit and
accordingly, it stands dismissed.
The trial court shall take steps to execute the sentence.
Registry shall transmit the records to the trial court
forthwith.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
