Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Chandran K.K. S/o Kumaradas – Petitioner
Versus
C.V. Kunhikrishnan S/o Raman Nambiar – Respondent
Crl. Rev. Pet. No. 596 of 2022
Decided On : 03-11-2022
Negotiable Instruments Act - Section 138 - Code of Criminal Procedure,1973 - Sections 397 and 401 - Original Complainant - Convicted - Dishonour of Cheque - Notice of Demand - Branch with assurance - Cognizance - Default imprisonment - Held, Court said ratio has been followed in a latest decision of Supreme Court reported law is clear on point that whole purpose of the revisional jurisdiction is to preserve power in court to do justice in accordance with principles of criminal jurisprudence - It would not be appropriate for High Court to re-appreciate the evidence and come to its own conclusion on same when evidence had already been appreciated by Magistrate as well as Sessions Judge in appeal unless any glaring feature is brought to notice of court which would otherwise tantamount to gross miscarriage of justice - Petition is Allowed.
ORDER :
1. This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience) and the revision petitioner herein is the sole accused in S.T. No. 3548 of 2016 on the file of the Judicial First Class Magistrate Court, Taliparamba. The respondents herein are the original complainant as well as the State of Kerala.
2. The revision petitioner impugns judgment dated 31.08.2019 in the above case and thereby, he was convicted and sentenced for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as NI Act for convenience). He also impugns judgment in Crl.Appeal No. 278 of 2019 dated 05.07.2022 on the file of the Sessions Court, Thalassery by which, the learned Sessions Judge dismissed the appeal.
3. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor on admission. Notice to the first respondent/the original complainant stands dispensed with.
4. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience.
5. The case put up by the complainant before the trial court was that in repayment of Rs.2 lakh entitled to by the complainant, the accused issued cheque dated 10.11.2013 for Rs.2 lakh drawn on State bank of Travancore, Blathur Branch with assurance of encashment. But when the cheque was presented for collection, the same was dishonoured for want of funds. Though notice of demand was issued, no amount repaid. Accordingly, prosecution alleging commission of offence punishable under Section 138 of the NI Act was initiated.
6. The court below took cognizance of the matter and secured the presence of the accused for trial. During trial, PW1 to PW3 examined and Exts.P1 to P7 were marked on the side of the complainant.
7. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced.
8. On appreciation of the evidence, the trial court imposed simple imprisonment for a period of one month and to pay fine of Rs.2,00,000/-and the fine was ordered to be paid as compensation to the complainant. On failure of pay the fine amount, default imprisonment for a period of two months also was imposed. Crl.Appeal No. 278 of 2019 arising therefrom also was dismissed by the learned Sessions Judge.
9. Now the concurrent verdicts of the trial court as well as the appellate court are under challenge before this Court. While arguing the case, it is submitted by the learned counsel for the revision petitioner that Ext.P2 dishonour memo was not in relation to Ext.P1 cheque and therefore, dishonour of Ext.P1 cheque for want of funds not proved by the complainant. Similarly, it is argued that the lower court ignored the fact that the entries in the cheque were not written by the accused. Further, it is contended that the complainant miserably failed to prove his initial burden in this matter.
10. In fact, the challenge except in respect of Ext.P2 are matters which would require appreciation and re-appreciation of evidence and the same cannot be done, while exercising the power of revision. However, in this matter, as could be read out from the judgments, it is to be noted that Ext.P2 is the dishonour memo which was issued by the Bank, when Ext.P1 was presented for collection. This contention was raised before the trial court on the submission that Ext.P2 did not contain the cheque number shown in Ext.P1. However, in order to prove Ext.P2, dishonour memo was pertaining to Ext.P1, complainant examined PW2, the Branch Manager of Syndicate Bank, Sreekandapuram Branch, through which Ext.P1 cheque was sent for collection. PW2 given evidence that Ext.P1 cheque bearing No. 160626 was sent for collection to the State bank of Travancore, Blathur Branch and Ext.P5 letter was received therefrom. PW3, Manager of State bank of Travancore, Blathur Branch a
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.
The court's revisional jurisdiction does not permit reappraisal of evidence, reinforcing the presumption of debt under S.139 of the Negotiable Instruments Act.
The presumption favoring the complainant under Sections 118 and 139 of the NI Act remains unless disproven by the accused.
It has been settled in law that accused can either adduce independent evidence or rely on evidence tendered by complainant to rebut presumptions.
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....
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.
A signed blank cheque, validly handed over by the accused, attracts the presumption under Section 139 of the Negotiable Instruments Act, unless the accused provides evidence to the contrary. The burd....
Signature admission on cheque raises presumption of debt under NI Act; accused must rebut by preponderance even if blank security cheque; revisional jurisdiction limited, upholds concurrent findings ....
In a prosecution under Section 138 of the NI Act, once the execution of a cheque is admitted or proven, a presumption under Section 139 arises in favour of the complainant, and the burden shifts to t....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
