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2020 Supreme(Ker) 1025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R. Anitha, J.
M.K. Ajithkumar - Appellants
Vs.
K.S. Unni and Ors. - Respondent
Crl. Rev. Pet. No. 240 of 2005
Decided On : 22-06-2020
For the Appellant : T. Kuriakose Peter and Abraham P. George
For the Respondents: Kurian Joseph
The main legal point established is the presumption under Secs. 139 and 118 of the N.I. Act, the burden of proof on the accused, and the legal requirements for a notice of demand under Sec. 138 in a cheque dishonour case.
Headnote:
Cheque Dishonour - Negotiable Instruments Act - Secs. 139, 118, 138 - The court discussed the presumption under Secs. 139 and 118 of the N.I. Act, the burden of proof on the accused, and the admissibility of evidence to rebut the presumption. The court also considered the legal requirements for a notice of demand under Sec. 138 and relevant case law on cheque dishonour.
Fact of the Case:
The accused issued a cheque that was dishonoured, leading to a complaint under Sec. 138 of the N.I. Act. The accused claimed to have repaid the borrowed amount, but the courts found the evidence insufficient to rebut the presumption under Secs. 139 and 118 of the N.I. Act.
Finding of the Court:
The court found the accused guilty under Sec. 138 of the N.I. Act and modified the sentence to a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for three months.
Issues: The issues revolved around the admissibility of evidence to rebut the presumption under Secs. 139 and 118 of the N.I. Act, the legal requirements for a notice of demand under Sec. 138, and the burden of proof on the accused in a cheque dishonour case.
Ratio Decidendi: The court held that the evidence adduced by the accused was not sufficient to rebut the presumption under Secs. 139 and 118 of the N.I. Act. It also considered the legal requirements for a notice of demand under Sec. 138 and relevant case law on cheque dishonour.
Final Decision: The revision petition was allowed in part, confirming the conviction and modifying the sentence to a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for three months.
The evidence adduced by the accused indicating repayment consisted primarily of Ext. D6, which is an account book maintained by the accused. This account book purportedly records the repayment of the borrowed amounts, specifically noting that Rs. 5,000/- was borrowed on 17.3.1999 and Rs. 10,000/- on 14.10.1999, and that these amounts, along with interest, were repaid on 2.3.2001 (!) (!) (!) (!) .
Additionally, the accused relied on Ext. D7, a lawyer's notice sent prior to the initiation of proceedings, which detailed the borrowings and claimed that the entire liability had been discharged. The account book (Ext. D6) and the lawyer's notice (Ext. D7) together were presented as evidence to support the contention that the debt had been repaid (!) (!) .
However, the credibility and authenticity of Ext. D6 as a regularly maintained account book were challenged, and the courts ultimately found that it was not kept in the usual course of business and was prepared recently, thereby questioning its reliability as evidence of repayment (!) (!) .
ORDER :
M.R. Anitha, J.
1. This revision petition has been filed aggrieved by the concurrent findings of guilt, conviction and sentence. Revision petitioner is the accused in a private complaint.
2. First respondent/complaint's case in short is as follows:
Revision petitioner/accused borrowed an amount of Rs. 1,00,000/- from the first respondent/complainant and in discharge of the same, the revision petitioner/accused (hereinafter referred to as the accused) issued cheque No. 278421 dated 21.3.2001 drawn on Vysya bank, M.G. Road branch. On presentation of the cheque it was dishonoured as per memo dated 22.3.2001 for the reason 'payment stopped' by the drawer. Thereafter the first respondent/complainant (hereinafter will be referred as the complainant) issued registered notice for which a reply was sent raising untenable contentions. Since the amount was not paid within the statutory period, the complaint was filed.
3. The complainant got himself examined as PW1 and Exts. P1 to P6 were marked from the side of the complainant. The accused was examined as DW1 and Exts. D1 to D8 were marked from on his side. Thereafter on hearing both sides, the trial court found the accused guilty and sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs. 1,00,000/- to PW1 in default to undergo simple imprisonment for two months. Against which Crl. Appeal 205/2004 was filed and the V Additional Sessions Court, Ernakulam by the impugned judgment, confirmed the conviction and sentence was modified reducing the substantial sentence to three months.
4. Aggrieved by the same, accused came up in revision for the various grounds stated in the memorandum of revision.
5. According to the learned counsel for the accused, the defence of the accused was that he borrowed Rs. 5000/- on 17.3.1999 and Rs. 10,000/- on 14.10.1999 and that amount with interest was re-paid on 2.3.2001. The above fact is proved through Ext. D6 account book kept in his office and stating the above facts, lawyer's notice was issued which is marked as Ext. D7. Ext. D8 is the postal receipt proving the issuance of Ext. D7 notice to the complainant. But the above document and his evidence were not properly appreciated. According to the counsel, the evidence adduced from the side of the accused rebuts the presumptions available to the complainant under Secs. 139 and 118 of the Negotiable Instruments Act, 1881 (hereinafter referred as the N.I. Act). But that also has not been given proper weightage. It is also his contention that in the notice and also in the complaint, no details of availing of the amount have been given in spite of the fact that the accused sent a lawyer's notice detailing the availment of amount of Rs. 5,000/- and Rs. 10,000/- and discharge of the liability and that caused prejudice to him.
6. The learned counsel for the complainant herein on the other hand would contend that all the documents produced from the side of the accused are self serving documents and Ext. D6 the alleged account book has been found to be a newly prepared one by the learned magistrate. It is not a one kept in the regular course of business of the accused and is not an authenticated one. Hence no relevance can be placed upon it.
7. To prove the case of the complainant he himself was examined as PW1 and Ext. P1 cheque for Rs. 1,00,000/- has been marked on his side. He deposed in chief examination with regard to the availment of Rs. 1,00,000/- by the accused and issue of Ext. P1 cheque in discharge of the liability. He has been returned from gulf and the accused is a film distributor and the monetary transactions between them are admitted.
8. The dispute is with regard to the actual amount borrowed and the period during which it was borrowed. According to the accused, on 17.3.1999 Rs. 5000/- was borrowed and on 14.10.1999 Rs. 10,000/- was borrowed and he repaid the amount of Rs. 15,750/- on 2.3.2001. According to him, the entire liability has been discharged. To prove th
