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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.G. AJITHKUMAR, J.
Priyamvada K., W/o. Radhakrishnan – Petitioner
Versus
M. Rahufina, W/o. Abdul Nazar and Anr. – Respondents
Crl. Rev. Pet No. 934 Of 2019
Decided On : 09-01-2024
Negotiable Instruments Act - Conviction under Section 138 - 138, 139, 118(a), 20, 87 - The court discussed the principles of presumption under Section 139 and how it can be rebutted, the burden of proof on the accused, and the legal enforceability of a debt under a chit transaction. The court also highlighted the limitations of revisional jurisdiction and the scope of interference with concurrent findings of the lower courts.
Fact of the Case:
The petitioner was convicted and sentenced under Section 138 of the Negotiable Instruments Act for issuing a cheque that was returned unpaid. The petitioner denied the accusation and claimed that the cheque was issued under threat and coercion.
Finding of the Court:
The court found that the petitioner's contentions regarding the issuance of the cheque under threat and coercion were not substantiated. The court also held that the findings of the lower courts leading to the conviction were well supported by evidence and not perverse.
Issues: The issues included the validity of the cheque issuance, burden of proof on the accused, and the legality of the chit transaction in relation to the debt.
Ratio Decidendi: The court emphasized the principles of presumption under Section 139 and the burden of proof on the accused to rebut the presumption. It also highlighted the limitations of revisional jurisdiction and the scope of interference with concurrent findings of the lower courts.
Final Decision: The revision petition filed by the accused against conviction and sentence was dismissed.
ORDER :
The petitioner, who stands convicted and sentenced for an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act) has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). The trial court convicted her and sentenced to pay a fine of Rs.6 lakhs and in default of payment of fine to undergo simple imprisonment for a period of four months. It was directed that the fine amount, if realised, should be paid to the 1st respondent-complainant as compensation. The Appellate Court confirmed the conviction and the sentence.
2. The 1st respondent filed the complaint with the following allegations: The 1st respondent had a chitty transaction with the petitioner. In relation to that Rs.6 lakhs was due to the 1st respondent and for the payment of that amount, the petitioner issued Ext.P1 cheque. When the said cheque was presented for encashment, it was returned unpaid. A demand notice was issued and on receipt of it, the appellant sent a reply. The amount due under the cheque was not repaid.
3. The petitioner appeared before the trial court on streceipt of summons and denied the accusation. The 1st respondent examined herself as PW1 and produced Exts.P1 to P5. The petitioner was examined under Section 313(1)(b) of the Code. She denied the incriminating circumstances. She further set forth the following defence. She borrowed Rs.5 lakhs from the 1st respondent in 2016. No security was given at that time. However, after a year, a cheque drawn by her husband for an amount of Rs.3 lakhs was given. In June, 2017, Rs.2,75,000/-was paid to the 1st respondent. Later, under coercion and threat by the 1st respondent, the petitioner had to issue a blank cheque and chitty passbooks with false entries. It is incorrect that Rs.6 lakhs was due from the petitioner to the 1st respondent. Misusing the blank cheque given by the petitioner, the prosecution was initiated. No evidence was, however, adduced by the petitioner.
4. After appreciating the evidence available on record, the trial court found the appellant guilty. The contentions set forth before the Appellate Court to assail the conviction and sentence were not accepted by the Appellate Court. The correctness, legality and propriety of such concurrent findings of the courts below are under challenge in this revision.
5. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned Public Prosecutor.
6. The contention of the petitioner concerning Ext.P1 cheque is that it was issued in blank under threat and coercion. The case of the 1st respondent, on the other hand, is that in order to make payment of the amount due to her from the petitioner under a chit transaction, Ext.P1 was issued. It is alleged by the petitioner that in the complaint or in the demand notice, details of the chit transaction were not mentioned and therefore the prosecution is bound to fail. When the circumstances culminating in issuance of Ext.P1 are not disclosed, at least in the complaint, Ext.P1 cannot be used for a valid prosecution. The learned counsel for the petitioner highlighted the aforesaid facts in order to contend that the burden is heavy on the 1st respondent to prove execution of the cheque; whereas, the oral testimony of PW1 alone is available to prove its execution, which is totally insufficient and hence the prosecution is bound to fail.
7. In Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197] the Apex Court held that a meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly sign
The main legal point established in the judgment is the application of the principles of presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to rebu....
(1) Revisional jurisdiction – Limited power under revisional jurisdiction is to do justice in accordance with principles of criminal jurisprudence and it would not be appropriate for High Court to re....
The presumption under Sections 118(a) and 139 of the Negotiable Instruments Act can be rebutted by the accused, leading to acquittal if the complainant fails to prove a legally enforceable debt.
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 ....
The presumption favoring the complainant under Sections 118 and 139 of the NI Act remains unless disproven by the accused.
The presumption of issuance under Section 139 of the N.I. Act does not place the burden on the complainant, but rather requires the accused to provide evidence to rebut it.
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....
Admission of cheque triggers presumption of debt under NI Act Sections 118(a), 139; security cheques attract Section 138 if liability exists; rebuttal by preponderance needed, not mere denial; revisi....
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