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2017 Supreme(Ker) 419
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
JAYARAM D. – PETITIONER
Versus
V.K.ANTONY AND ORS. – RESPONDENTS
Crl.R.P.No. 298 of 2017
Decided On : 13-03-2017
For the Petitioner: SRI. J.OM PRAKASH
For the Respondent: SRI. SIBI THOMAS JACOB, SRI.SAIGI JACOB PALATTY
The accused successfully rebutted the statutory presumption under Sec.139 and Sec.118(a) of the N.I. Act, shifting the burden to the complainant, who failed to discharge it.
Headnote:
Sec.138 - Negotiable Instruments Act - Sec.357(3) of Cr.P.C. - The court discussed the offence under Sec.138 of the Negotiable Instruments Act and the sentencing under Sec.357(3) of Cr.P.C. The judgment provides a concise summary of the legal framework applied by the court in reaching its decision.
Fact of the Case:
The petitioner was convicted for an offence under Sec.138 of the Negotiable Instruments Act and sentenced to imprisonment and compensation. The petitioner appealed the decision, claiming that the cheque was given as security for a chit transaction and not as a loan.
Finding of the Court:
The trial court and the appellate court convicted the petitioner, disregarding crucial evidence and the defense's version. The High Court found the lower courts' decisions to be unreasonable and perverse, leading to a failure of justice, and acquitted the accused.
Issues: The key issues were the nature of the transaction, the credibility of the complainant, and the burden of proof in rebutting the presumption under Sec.139 of the N.I. Act.
Ratio Decidendi: The court held that the accused successfully rebutted the statutory presumption under Sec.139 and Sec.118(a) of the N.I. Act, shifting the burden to the complainant, who failed to discharge it. The court also emphasized the importance of disclosing crucial and relevant aspects in the complaint.
Final Decision: The accused was acquitted of the offence under Sec.138 of the Negotiable Instruments Act and ordered to be set at liberty.
The petitioner is accused for offence under Sec.138 of the Negotiable Instruments Act in C.C.No.50/2010 on the file of the Judicial First Class Magistrate's Court-II, Cherthala, instituted on the basis of a complaint filed by the 1st respondent herein. The trial court as per the impugned judgment dated 27.4.2013 had convicted the petitioner for the above said offence and had also sentenced him to undergo simple imprisonment for 3 months and to pay an amount of Rs.50,000/- (which is the amount covered by the dishonoured cheque) to the complainant as compensation under Sec. 357(3) of the Cr.P.C. and in default thereof, he was to undergo simple imprisonment for a further period of 15 days. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.208/2013 before the Sessions Court, Alappuzha. The appellate court concerned (the Court of Addl. Sessions Judge, Alappuzha) by the impugned judgment rendered on 31.10.2014 has dismissed the appeal, thereby confirming the impugned sentence and conviction. It is aggrieved by the abovesaid concurrent verdicts rendered by both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sec.397 read with Sec.401 of the Code of Criminal Procedure.
2. The gist of the prosecution case is that the accused had owed an amount of Rs.50,000/- to the complainant as personal loan and in discharge of that liability, the accused had given Ext.P-1 cheque dated 4.12.2009 for an amount of Rs.50,000/-, which when presented by the complainant, was dishonoured on the ground of insufficiency of funds. Thereupon, the complainant had given the statutory demand notice under Sec.138 proviso (b) of the Negotiable Instruments Act, as per Ext.P-4 notice, which was duly delivered on the accused. Since the accused did not make the payment within the stipulated time limit of 15 days, the complainant instituted the present complaint, which resulted in the trial in question leading to the conviction and sentence of the petitioner accused.
3. The complainant had examined himself as P.W-1 and has marked Exts.P-1 to P-7 documents. The accused has examined himself as DW-1 and marked Exts.D-1 to D-4 documents through P.W-1.
4. Heard Sri.J.Omprakash, learned counsel appearing for the revision petitioner accused, Sri.Sibi Thomas, learned counsel appearing for R-1 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.
5. The case projected by the complainant in the demand notice and in the complaint as well as Sec.200 sworn statement is bereft of much details and would only briefly state that accused had owed an amount of Rs.50,000/- to the complainant and in discharge of such liability, the accused had given the cheque in question dated 4.12.2009 for Rs.50,000/-, which resulted in the dishonour, etc. The specific case projected by the defence at the time of mounting challenge against the complainant's evidence during cross examination of P.W-1 is that the accused has never borrowed the amount of Rs.50,000/- from the complainant, but that the complainant is running a chit firm and that the accused was a subscriber to a chit conducted by the complainant with the commencement period of 20.8.2011 upto the termination period of 20.11.2014 and that the monthly installment that was to be paid by the petitioner was Rs.1,520/- per month for 40th months and that at the time of the initial entering into the chit transaction, the complainant had demanded that the petitioner to give salary certificates of at least 3 persons including himself and since it was not possible for the accused to produce 3 salary certificates as security, the complainant had taken salary certificate of the petitioner as well as 3 signed blank cheques as security and that the abovesaid dishonoured cheque in question has been misused for the present complaint. Further that the accused had defaulted in the chit installments after the 13th monthly instal
