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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
M. Shabeer, S/o. Mohammed Sali – Petitioner
Versus
Anitha Bajee, W/o. Bajee Govindan - Respondent
Crl.R.P.Nos.624 and 625 of 2022
Decided On : 19-10-2022
Code of Criminal Procedure,1973 - Section 357(1),397,401 - Negotiable Instruments Act, 1881 - Sections 118,138,138(b),139,142 – Dishonour of Cheque due to insufficient funds - Calling for records to exercise powers of revision – High court’s powers of revision - Presumptions as to negotiable instruments of consideration – Presumption in favour of holder – Cognizance of offences - Law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions under Sections 118 and 139 of the N.I Act would come into play (Para 19).
Findings of the Court :
Statutory provision is clear that maximum fine shall be twice amount of cheque and nothing more. So, a blanket order, as in a civil case, directing accused to pay fine amount along with interest @ 9% per annum for principal cheque amount if exceeds at time of payment, in excess of double cheque amount, the said course of action is not permitted under law and courts must ensure that while ordering payment of fine, same shall not exceed double cheque amount. Say, for example, in this particular case, interest @ 9% per annum for Rs.1,50,000/-if calculated, as ordered by trial court as well as appellate court @ 9%, Rs.13,500/-is annual interest. If the amount is calculated, same would come to (13,500 X 14) Rs.1,89,000/-. Thus amount of fine as would come to Rs.3,39,000/-. That is, the fine amount would go beyond the limit of double the cheque amount as itself. It will go on accumulating till the date of payment or realisation. The statute does not provide such accumulation beyond twice cheque amount.
Result: Revision Petitions allowed
ORDER :
1. These Revision Petitions, filed under Section 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’ for short), are at the instance of the accused in S.T.No.10000/2011 and 10001/2011 on the files of the Judicial First Class Magistrate Court-IV (Mobile Court), Thiruvananthapuram. The respondents herein are the original complainant as well as the State of Kerala.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Notice to the 1st respondent in both the revision petitions stands dispensed with.
3. I shall refer the parties in these revision petitions as ‘complainant’ and ‘accused’ for convenience.
4. In these matters, the complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I Act’ for short) by the accused, consequent to dishonour of 2 cheques issued by the accused for Rs.1,50,000/-and Rs.75,000/-in partial discharge of the liability towards the complainant and her husband starting from 1997. The specific case put up by the complainant is that when the above cheques were presented for collection, the same got dishonoured for want of funds. Although notice demanding the amounts covered by the cheques were issued to the accused, he did not pay the amount. Therefore, the complainant initiated proceedings under Section 142 of the N.I Act alleging commission of offence punishable under Section138 of the N.I Act by 2 separate proceedings numbered as S.T.No.10000/2011 (pending for cheque for Rs.1,50,000/-) and S.T.No.10001/2011 (pending for cheque for Rs.75,000/-).
5. The trial court secured the presence of the accused and tried both the cases together. The evidence was confined to PW1, PW2 and Exts.P1 to P15 on the side of the complainant. No evidence adduced at the instance of the accused.
6. On appreciation of the evidence in S.T.10000/2011, the trial court imposed sentence to undergo imprisonment till the rising of the court and to pay fine of Rs.1,50,000/-together with interest @ 9% per annum from 23.04.2008 i.e. the date of dishonour of Ext.P7 till entire realization in full under Section 138 of Negotiable Instruments Act, 1881. In default of payment of fine, accused shall undergo simple imprisonment for a period of three months. The fine amount, if realised, shall be paid as compensation to the complainant under Section 357(1) Cr.P.C. In S.T.10001/2011 the accused is sentenced to undergo imprisonment till the rising of the court and fine of Rs.75,000/-together with interest @ 9% per annum from 21.04.2008 i.e. the date of dishonour of Ext.P6 till entire realization in full under Section 138 of Negotiable Instruments Act, 1881. In default of payment of fine, accused shall undergo simple imprisonment for a period of two months. The fine amount, if realised, shall be paid as compensation to the complainant under Section 357(1) Cr.P.C.
7. Challenging the said conviction and sentence, the accused filed Crl.Appeal No.39/2019 and Crl.Appeal No.40/2019 before the Sessions Court, Thiruvananthapuram. The learned Principal Sessions Judge heard the appeals and concurred with the findings entered into by the trial court as per common judgment dated 08/07/2022. While challenging the concurrent verdicts of the courts below, it is argued by the learned counsel for the accused/revision petitioner that the trial court as well as the appellate court failed to appreciate and re-appreciate the evidence and the complainant failed to prove the case beyond reasonable doubt. It is contended further that the trial court failed to appreciate the defence case put up by the accused. Another contention raised is that there is no legal notice in this case. Therefore, the conviction and sentence require interference.
8. It is pertinent to note that the learned counsel for the accused pointed out an anomaly in the matter of legal notice which can be addressed by this Court by exercising power of revi
It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions.
It has been settled in law that accused can either adduce independent evidence or rely on evidence tendered by complainant to rebut presumptions.
The judgment establishes that the presumption of a legally enforceable debt under Section 139 of the NI Act is a reverse onus incumbent on the accused, who must provide evidence to counter it.
Admission of cheque issuance raises presumption of liability under NI Act Ss.118/139; rebuttal requires evidence beyond CrPC 313 denial. Revisional jurisdiction limited to patent errors, not evidence....
Admission of cheque signature raises NI Act presumptions of debt discharge (ss.118(a),139); accused must rebut with evidence, not mere denial. Security/blank signed cheques attract s.138 liability de....
Signature admission on cheque triggers Sections 118(a),139 NI Act presumption of debt discharge; accused must rebut by evidence, mere denial insufficient; revisional jurisdiction limited, no interfer....
Admission of cheque signature raises presumption of debt under NI Act ss118(a),139; accused's lost cheque plea fails without bank report; revisional jurisdiction limited to perversity, upholding conc....
Revisional jurisdiction limited to patent errors, no reappreciation absent perversity; presumption of debt under NI Act holds post cheque admission unless robustly rebutted; security cheques attract ....
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