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2010 Supreme(Ker) 543
High Court of Kerala
THE HONOURABLE MR. JUSTICE V.K. MOHANAN
V. Vijayakumar
Versus
M.T. Vijayan & Another
Crl.Rev.Pet.No. 3239 of 2008
Decided On : 27-09-2010
For the Petitioner:R. Sudhish, Advocate. For the Respondents: Public Prosecutor.
The accused's failure to effectively challenge the complainant's evidence and provide a plausible explanation for the dishonoured cheque reinforced the complainant's case, leading to the accused's conviction under section 138 of the N.I.Act.
Headnote:
C.R - Conviction under section 138 of the Negotiable Instruments Act - M/s Modi Cements Limited v. Shri Kuchil Kumar Nandi (JT 1998(2) SC 198); Vinod Tanna & Anr. v. Zaheer Siddiqui & Ors (J.T.2001(10) SC 344); Rangappa v. Mohan (2010(2) KLT 682)(SC) - Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457)
Fact of the Case:
The accused borrowed a sum of Rs.2,50,000 from the complainant and issued a cheque to discharge the liability. The cheque was dishonoured, leading to a prosecution under section 138 of the N.I.Act. The trial court and the lower appellate court found the accused guilty and sentenced him to imprisonment and compensation.
Finding of the Court:
The trial court and the lower appellate court's findings of the accused's guilt under section 138 of the N.I.Act were upheld. The accused failed to effectively challenge the complainant's evidence and did not provide a plausible explanation for the dishonoured cheque.
Issues: The main issue was whether the accused had effectively rebutted the presumption under section 139 of the N.I.Act and whether the dishonoured cheque was issued to discharge a legally enforceable debt.
Ratio Decidendi: The accused's failure to send an effective reply to the legal notice and to provide a plausible explanation for the dishonoured cheque reinforced the complainant's case. The incomplete signature on the cheque did not absolve the accused of liability under section 138 of the N.I.Act, as the dishonour was primarily due to insufficient funds.
Final Decision: The accused's conviction under section 138 of the N.I.Act was confirmed, and the sentence of imprisonment was replaced with a fine of Rs.2,80,000, with a three-month deadline for payment. Failure to pay the fine would result in a six-month imprisonment. The accused was directed to deposit the fine, with a portion to be paid to the complainant as compensation.
“(C.R)”
1. The challenge in this Crl. Revision Petition is against the conviction and sentence imposed against the revision petitioner, who is the accused in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act (for short, the N.I.Act).
2. The case of the complainant, the first respondent herein, is that the complainant and the accused are close family friends and out of that relationship, the revision petitioner/accused borrowed a sum of Rs.2,50,000/- from the complainant on 5.12.2003 and on receipt of the said amount, towards the discharge of the said liability, the accused issued a cheque dated 5.12.2003. According to the complainant, when the above said cheque was presented for encashment, the same was dishonoured for the following reasons: (1) Drawer's signature incomplete, (2) payment stopped by the drawer and (3) funds insufficient. On receipt of the dishonour memo, the complainant caused to issue a lawyer notice informing the accused regarding the dishonour of the cheque and also demanding for the payment of the amount covered by the dishonoured cheque and in spite of receipt of the notice, no amount is paid by the accused and thus according to the complainant, the accused has committed the offence punishable under section 138 of the N.I.Act.
3. With the above allegation, the complainant by filing a complaint approached the Judicial First Class Magistrate Court-IV Kozhikode, upon which cognizance was taken for the offence under section 138 of the N.I.Act and instituted C.C.No.18/2004. During the trial, the complainant himself was examined as PW1 and he produced Exts.P1 to P4 documents as Exhibits for the prosecution. From the side of the defence, no evidence, either oral or documentary, is adduced. By an elaborate judgment, the trial court found that the complainant had complied with all the requirements to initiate prosecution under section 138 of the NI Act and also found that the cheque in question was issued to discharge a legally enforceable debt and the cheque was dishonoured for want of sufficient funds in the account of the accused. Thus the trial court has found that the accused is guilty of the offence punishable under section 138 of the N.I.Act and he is convicted for the said offence. On such conviction, the accused is sentenced to undergo simple imprisonment for 6 months and to pay a sum of Rs. 2,50,000/- as compensation to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as 3 months simple imprisonment.
4. Challenging the above conviction and sentence, though the revision petitioner had preferred an appeal, by judgment dated 26.6.2008 in Crl.A.No.310/2007, the IInd Addl. Sessions Judge, Kozhikode, allowed the appeal only in part and thus while confirming the conviction of the revision petitioner under section 138 of the Act, the sentence is modified and the revision petitioner is sentenced to undergo imprisonment till rising of the court and directed to pay a compensation of Rs.2,50,000/-to the complainant under section 357(3) of Cr.P.C and, in default in paying the compensation amount, he is directed to undergo simple imprisonment for three months. It is also ordered that on realisation of the compensation amount, the entire amount shall be paid to the complainant. It is the above conviction, sentence and order to pay compensation that are challenged in this revision Petition.
5. I have heard Sri Sudhissh.R, the learned counsel appearing for the revision petitioner and Sri P.M. Mohammed Shiraz, the learned counsel appearing for the Ist respondent and Sri V.Tek Chand, the learned Public Prosecutor appearing for the 2nd respondent. I have also perused the evidence and materials on record.
6. The learned counsel for the revision petitioner vehemently argued that the complainant has miserably failed to prove the offence against the revision petitioner/accused beyond reasonable doubt. The learned counsel submitted that the revision p
