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2020 Supreme(Ker) 984
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
Raju M.Thomas S/o Thomas - Appellant
Versus
State of Kerala Prosecutor, High Court of Kerala, Ernakulam and Ors - Respondent
Crl.Rev.Pet.No.2777 of 2007
Decided On : 23-11-2020
Advocate Appeared:
For the Appellant : Sri.P.Haridas Adv.
For the Respondent: Sri.B.Balraj, Sri.Sajju.S, Sri. K.Shaj Adv., Sr.PP.M.S.Breez
Point of Law: Dishonoured of Cheque – Conviction modified - Jail sentence is not mandatory in an offence under Section 138 of NI Act. It is just and proper to modify sentence awarded by two courts below by sustaining conviction imposed.
Headnote:
Negotiable Instruments Act, 1881 - Section 138 –Appeal against conviction - Case of complainant that accused issued two cheques each drawn on the account maintained by accused with Union of India, Branch in favour of complainant. Complainant presented cheques for encashment through the Corporation Bank, but cheques were dishonoured for want of sufficient funds. Statutory notice was issued to accused calling upon him to pay the amount. Accused received the notice. However, he had neither sent a reply nor paid the amount covered under the cheques. Hence complaint.
Finding of the court: Accused has no case that the cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability - Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt - It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below
Result: Criminal revision petition is partly allowed
ORDER :
1. This criminal revision petition is directed against the judgment dated 23.11.2006 rendered by the Additional Sessions Court-I, Mavelikkara, in Crl.Appeal No.114 of 2006, whereby the learned Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, 'NI Act') rendered by the trial court to undergo simple imprisonment for a period of three months and also to pay a compensation of Rs.2,00,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months more under Section 138 of the NI Act.
2. The revision petitioner was the accused in CC No.483 of 2004 on the file of the Judicial First Class Magistrate Court-I, Chengannur and the appellant in Crl.Appeal No.114 of 2006 on the file of the Additional Sessions Court-I, Mavelikkara. The 1st respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the NI Act against the accused. Upon consideration of the complaint, the learned magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the NI Act and the case was taken on file as CC No. 483 of 2004. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated.
3. It is the case of the complainant that the accused issued two cheques bearing Nos. 042385 and 042386 dated 27.04.2004 for Rs.1,00,000/- each drawn on the account maintained by the accused with the Union of India, Chengannur Branch in favour of the complainant. The complainant presented the cheques for encashment through the Corporation Bank, Pathanamthitta Branch, but, the cheques were dishonoured for want of sufficient funds. Statutory notice was issued on 21.05.2004 to the accused calling upon him to pay the amount. The accused received the notice. However, he had neither sent a reply nor paid the amount covered under the cheques. Hence, the complaint.
4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, PW1 was examined and marked Exts.P1 to P6 on prosecution side. After PW1 had been examined, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure for the purpose of enabling him to explain any circumstance appearing in the evidence against him. He denied all the incriminating circumstances. The accused submitted that he borrowed an amount of Rs.2,00,000/-from the complainant and his wife on 15.02.1999. The accused further submitted that at the time of borrowing the amount, he issued two blank cheques as security for the amount and thereafter, he repaid the whole amount with interest. In support of the defence, DW1 was examined and marked Exts.D1 and D2. Ext.D1 is the reply notice and Ext.D2 is the receipt showing the dispatch of Ext.D1.
5. On appreciation of the evidence, the learned magistrate held that the execution of the cheque was proved by the complainant and that the cheque was dishonoured for want of sufficient funds. The complainant issued statutory notice calling upon the accused to pay the amount within fifteen days from the date of receipt of the statutory notice. It has come out in evidence that the accused failed to pay the amount covered under the cheques within fifteen days from the date of receipt of the statutory notice. All other statutory formalities have been complied with. Hence, the learned magistrate concluded that the cheque was issued by the accused for the discharge of debt or liability.
6. Heard Sri.P.Haridas, the learned counsel for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 1st respondent-State.
7. In order to determine the question whethe
