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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SOPHY THOMAS, J.
Yahiya P, S/o. Pareed Kunju – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor, Ernakulam and Anr. – Respondents
Crl. Rev. Pet No. 1382 Of 2008
Decided On : 09-01-2024
N.I Act - Conviction under Section 138 - [Negotiable Instruments Act] - [Section 138] - The court examined the legality, propriety, and correctness of the concurrent findings of the courts below, convicting and sentencing the revision petitioner under Section 138 of the N.I Act. The revision petitioner challenged the conviction and sentence on the grounds of improper service of statutory notice, material alteration in the cheque, and discharge of the debt due. The court analyzed each ground and found that the notice was properly served, there was no material alteration in the cheque, and the debt was discharged by the petitioner. The court relied on the evidence and admissions made by the complainant to conclude that the presumption under Sections 118 and 139 of the N.I Act disappeared, and the burden shifted to the complainant to prove the case without the aid of presumptions. The court referred to the decision in Narayana Menon v. State of Kerala [2006 (3) KLT 404 (SC)] to establish that the accused is only required to discharge the initial burden of proof, and the burden shifts to the complainant. The court ultimately set aside the conviction and sentence, finding the revision petitioner not guilty of the offence alleged, and acquitted him.
Fact of the Case:
The case arose from a complaint filed by the complainant against the revision petitioner under Section 138 of the N.I Act, alleging dishonor of a cheque issued for the purchase of readymade garments. The trial court found the revision petitioner guilty and convicted him, a decision upheld by the appellate court. The revision petitioner challenged the conviction and sentence on the grounds of improper service of statutory notice, material alteration in the cheque, and discharge of the debt due.
Finding of the Court:
The court found that the notice was properly served, there was no material alteration in the cheque, and the debt was discharged by the petitioner. The court relied on the evidence and admissions made by the complainant to conclude that the presumption under Sections 118 and 139 of the N.I Act disappeared, and the burden shifted to the complainant to prove the case without the aid of presumptions. The court ultimately set aside the conviction and sentence, finding the revision petitioner not guilty of the offence alleged, and acquitted him.
Issues: The issues revolved around the proper service of statutory notice, material alteration in the cheque, and discharge of the debt due under the cheque.
Ratio Decidendi: The court's decision was influenced by the evidence and admissions made by the complainant, which rebutted the presumptions available under Sections 118 and 139 of the N.I Act. The court also referred to the decision in Narayana Menon v. State of Kerala [2006 (3) KLT 404 (SC)] to establish the burden of proof and the shifting of the burden to the complainant.
Final Decision: The court set aside the conviction and sentence, finding the revision petitioner not guilty of the offence alleged, and acquitted him.
Key Points: - The burden of proof shifts to the complainant after the accused discharges the initial burden, causing the presumption under Sections 118 and 139 to disappear. (!) - The court examined whether there was proper service of statutory notice, material alteration in the cheque, and discharge of debt to determine validity of the conviction under Section 138. (!) (!) (!) - The evidence showed the notices were properly served, no material alteration in the cheque, and the debt was discharged, leading to setting aside the conviction and acquitting the revision petitioner. (!) (!) (!) - Narayana Menon v. State of Kerala is cited to support shifting the burden and the standard of proof being a preponderance of probabilities. (!) (!) - The case concluded with acquittal and cancellation of bail bonds, effectively allowing the revision petition. (!) - The factual background involves a complaint under Section 138 by a partnership firm for a cheque issued in payment for readymade garments, with initial conviction and appellate confirmation, then reversal on revision. (!) (!) (!) (!) - The defense argued misidentification of address in notices, material alteration, and discharge of liability; these were examined and rejected as non-material or properly proven. (!) (!) (!) (!) - Post-dormant evidence includes admissions, bank statements (Ext.D6), and receipts (Ext.D2) that demonstrated post-Ext.D1 transactions, undermining the presumption. (!) (!) (!) - The decision emphasizes that the existence of preponderance of probabilities and admissions by the complainant can rebut presumptions and shift the burden back to the complainant. (!) (!)
ORDER :
This revision is at the instance of the accused in CC No.163 of 2003 on the file of Judicial First Class Magistrate Court-III (Mobile Court), Ernakulam, assailing the judgment in Crl.Appeal No.526 of 2007 on the file of Additional Sessions Judge (Adhoc-II), Ernakulam, which upheld his conviction and sentence under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the N.I Act’).
2. CC No.163 of 2003 arose out of a complaint filed by the 2nd respondent/complainant against the revision petitioner under Section 138 of the N.I Act. The allegation in the complaint was that, the complainant/2nd respondent, a partnership firm engaged in the wholesale business of readymade garments at Ernakulam, supplied readymade items to the revision petitioner who was running a shop by name M/s.Arafa Tex at Kollam. Towards the cost of readymade garments purchased by the revision petitioner from the complainant/2nd respondent, he issued cheque No.13859 dated 10.10.1998 drawn on Federal Bank Limited, Umainalloor branch for an amount of Rs.42,639/-. When the complainant presented that cheque for encashment, it was returned unpaid for the reason ‘exceeds arrangement’. The complainant/2nd respondent issued registered notice to the revision petitioner in his residential address as well as in the address where he was working as a Musaliyar. Those notices returned with the endorsement ‘addressee left without instructions’. Since the amount was not paid, the complainant/2nd respondent preferred the complaint under Section 138 of N.I Act.
3. Learned Magistrate took cognizance of the offence under Section 138 of the N.I Act and issued summons to the revision petitioner. On appearance before court, substance of accusation was read over to the revision petitioner to which he pleaded not guilty. Thereupon, PWs 1 and 2 were examined and Exts.P1 to P10 were marked from the side of the complainant. On closure of the evidence of the complainant, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and DWs 1 to 6 were examined and Exts.D1 to D12 were marked from defence side.
4. On an anxious consideration of the rival contentions and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Section 138 of the N.I Act, and he was convicted and sentenced to undergo simple imprisonment for three months and compensation of Rs.43,000/- with a default sentence of simple imprisonment for three months.
5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.526 of 2007. The appellate court, on re-appreciation of the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and so the appeal was dismissed, against which he has preferred this revision.
6. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the courts below, convicting and sentencing the revision petitioner under Section 138 of the N.I Act.
7. Heard learned counsel for the revision petitioner and learned counsel for the 2nd respondent/complainant.
8. The revision petitioner is assailing the conviction and sentence mainly on three grounds. The first ground is that, there was no proper service of the statutory notice under Section 138(b) of the N.I Act. The second ground is that, there was material alteration in Ext.P2 cheque regarding the date. The third ground is that, there was discharge of the debt due under Ext.P2 cheque, and so the complaint under Section 138 of the N.I Act will not lie against him.
9. Let us examine these grounds one after another.
The first ground urged by the revision petitioner is that, there was no proper notice under Section 138(b) of the N.I Act so as to constitute an offence punishable under Section 138 of N.I Act. PW1, who is the partner of the complainant firm, deposed that, since the revision petiti
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