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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
V.Prabhakaran Nair – Appellant
Versus
Malayinkil Service Co-Operative Bank – Respondent
Crl.Rev.Pet.No.3338, 3339, 3341 of 2006
Decided on : 23-10-2020
Negotiable Instruments Act- Section 138 read with Section 141 -Once the cheque is proved to be issued, it carries statutory presumption of consideration under Section 118 and 139 of the N.I.Act.
Statement of facts:
The complaints relate to 5 cheques for an amount of Rs.1,62,847/-+ Rs.59,377/-+ Rs.61,629/-= Rs.2,83,853/-. Three instances of dishonour for an amount of Rs.1,62,847/-(Rs.48,953/-+ Rs.56,992/-+ Rs.56,902/-=Rs.1,62,847/-) were brought in C.C.No.335/2000 whereas two instances of dishonour for an amount of Rs.59,337/-and Rs.61,629/-were brought in C.C.No.336/2000 and C.C.No.63/2001 respectively as separate complaints- Challenging the judgment in C.C.No.335/2000, C.C.No.336/2000 and C.C.No.63/2001, revision petitioners 1 and 2 preferred Crl.A.Nos.436/2002, 437/2002 and 352/2003 before the Sessions Court, Thiruvananthapuram. Both the trial court and the appellate court concurrently came to the conclusion that all the ingredients of the offence punishable under Section 138 of the N.I. Act have been established.
Finding of the court:
The cheques in question were drawn for consideration and the holder of the cheques received the same in discharge of an existing debt. Thereafter, the onus shifts on the accused to establish a probable defence so as to rebut such presumption, which onus has not been discharged by the accused. Once the cheque is proved to be issued, it carries statutory presumption of consideration under Section 118 and 139 of the N.I.Act. Then the onus is on the accused to disprove the presumption at which they have not succeeded.
Result: Criminal revision petitions are dismissed
ORDER :
The revision petitioners 1 and 2 were the Secretary and the Treasurer of an association constituted for the benefit of the Government Secretariat staff, Thiruvananthapuram known as the Kerala Secretariat Canteen Managing Committee, Government Secretariat, Thiruvananthapuram (hereinafter referred to as 'the Committee'). The Committee issued five cheques bearing Nos.296085 dated 07.05.1999, 296089 dated 14.7.1999, 296091 dated 17.8.1999 and 296088 dated 10.6.1999 and 296095 dated 26.12.1999 for a sum of Rs.48,953/-, Rs.56,992/-, Rs.56,902/-, Rs.59,377/-and Rs.61,629/-respectively in favour of the Malayinkeezhu Service Co-operative Bank, the complainant herein (hereinafter referred to as 'the complainant').
2. The complainant is the supplier of consumer goods, provision and other articles and the 1st accused is the Committee. The 2nd and 3rd accused purchased goods from the complainant for and on behalf of the 1st accused for a total sum of Rs.2,83,853/-. For consideration received, the accused 2 and 3 issued five cheques, for and on behalf of the 1st accused, drawn on the Treasury Savings Bank, Thiruvananthapuram. On presentation of the cheques, all the cheques were dishonoured for the reason 'insufficient funds'. The complainant issued registered notice to the accused Nos.1 to 3 calling upon them to pay the amount covered under the cheques within the statutory time. The notices were returned as 'unserved'. The accused 1 to 3 did not make payment to the complainant. The complainant on 4.1.2000 and 18.2.2000 filed three complaints before the Chief Judicial Magistrate Court, Thiruvananthapuram against the revision petitioners/accused Nos.2 & 3 and the Committee/1st accused under Section 138 read with Section 141 of the Negotiable Instruments Act (hereinafter referred to as the N.I.Act). The learned Chief Judicial Magistrate took cognizance of the offence under Section 138 of the N.I.Act and registered the cases as C.C.No.335/2000, C.C.No.336/2000 and C.C.No.63/2001 and made over the cases to Judicial First Class Magistrate Court-IV, Thiruvananthapuram and Judicial First Class Magistrate Court-V, Thiruvananthapuram respectively.
3. The complaints relate to 5 cheques for an amount of Rs.1,62,847/-+ Rs.59,377/-+ Rs.61,629/-= Rs.2,83,853/-. Three instances of dishonour for an amount of Rs.1,62,847/-(Rs.48,953/-+ Rs.56,992/-+ Rs.56,902/-=Rs.1,62,847/-) were brought in C.C.No.335/2000 whereas two instances of dishonour for an amount of Rs.59,337/-and Rs.61,629/-were brought in C.C.No.336/2000 and C.C.No.63/2001 respectively as separate complaints. The learned Judicial First Class Magistrate-V, Thiruvananthapuram conducted joint trial in C.C.Nos.335/2000 & 336/2000 and disposed of the case by virtue of common judgment dated 24.10.2002. The learned Judicial First Class Magistrate-V, Thiruvananthapuram conducted separate trial in C.C.No.63/2001 and delivered the judgment on 09.07.2003.
4. In the prosecution relating to three cheques for for an amount of Rs.1,62,847/-(Rs.48,953/-+ Rs.56,992/-+ Rs.56,902/-=Rs.1,62,847/-), the complainant was examined as PW1 in C.C.No.335/2000 and marked Exts.P1 to P8 on the side of the complainant. DW1 was examined and marked Exts.D1 to D3 on the side of the accused 1 to 3. In C.C.No.336/2000 relating to an amount of Rs.59,377/-, the complainant was examined as PW1 and marked Exts.P1 to P8 on the side of the complainant. DW1 was examined on the side of the accused and marked Exts.D1 to D3. In C.C.No.63/2001 relating to Rs.61,629/-, PWs.1 and 2 were examined on the prosecution side and marked Exts.P1 to P8. DWs.1 to 3 were examined and marked Exts.D1 to D4(b) on the side of the accused. Exts.C1 to C3 were marked as Court Exhibits.
5. Challenging the judgment in C.C.No.335/2000, C.C.No.336/2000 and C.C.No.63/2001, revision petitioners 1 and 2 preferred Crl.A.Nos.436/2002, 437/2002 and 352/2003 before the Sessions Court, Thiruvananthapuram. Both the trial court and the appellate court concurrently came to th
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