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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.B. SNEHALATHA, J.
Adline Pancy Vijayan, W/o. Innas Vijayan - Revision Petitioner
Versus
Navas K.C., S/o. Muhammed & Ors. - Respondents
Crl.R.P.No.466 of 2018
Decided On : 23-10-2024
(A) Negotiable Instruments Act, 1881 – Section 138 – Criminal Revision – Conviction and sentence under Section 138 set aside due to failure of complainant to prove existence of legally enforceable debt – The accused successfully rebutted the presumption under Sections 118(a) and 139 of the Act. (Paras 23)
(B) Evidence – Standard of proof – The standard for rebutting the presumption under Section 139 is 'preponderance of probabilities' and the accused can rely on materials already on record. (Paras 16)
Facts of the case: The accused borrowed Rs.5 lakhs from the complainant, issued a cheque which was dishonoured, leading to conviction under Section 138. The accused denied the transaction and claimed the cheque was misused. (Paras 3, 4)
Findings of Court: The complainant failed to establish the existence of a legally enforceable debt, leading to the acquittal of the accused. (Paras 23)
Issues: Whether the conviction under Section 138 should be upheld given the findings of a civil court dismissing the complainant's suit for recovery based on the same cheque. (Paras 9)
Ratio Decidendi: The court held that the complainant's failure to prove the debt and the binding nature of the civil court's finding necessitated the reversal of the conviction. (Paras 23)
Result: Criminal Revision petition allowed; conviction and sentence set aside. (Paras 23)
ORDER :
M.B. Snehalatha, J.
Revision Petitioner is the accused in C.C.No.97/2010 on the files of Judicial First Class Magistrate Court, Kalpetta. She assails the judgment in Crl.A.No.24/2016 of Sessions Court, Kalpetta by which the Sessions Court confirmed the conviction and sentence against her in C.C.No.97/2010 for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as ‘NI Act’).
2. The parties shall be referred to as complainant and accused.
3. The case of the complainant in brief is that accused borrowed a sum of Rs.5 lakhs from him in the 1st week of November 2009, agreeing to repay the same within three months. When demanded back the amount, accused issued Ext.P1 cheque for Rs.5 lakhs drawn on State Bank of India, Kainatty Branch. Upon presentation of Ext.P1 cheque, it was returned dishonoured due to 'insufficient funds' and also stating the reason 'drawers signature incomplete'. In spite of receipt of notice dated 27.3.2010, accused failed to pay the amount covered by the cheque. Accused thereby committed the offence punishable under Section 138 of N.I Act.
4. Accused pleaded not guilty to the accusation and denied the borrowal of any amount from the complainant and denied the issuance of Ext.P1 cheque to the complainant in discharge of any debt or liability.
5. Before the trial court, the complainant got himself examined as PW1 and marked Exts.P1 to P5. On the side of the accused, DW1 was examined and Exts.D1 to D6 were marked.
6. After trial, the learned Magistrate found the accused guilty of the offence punishable under Section 138 N.I Act and she was convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5 lakhs with default custodial sentence. It was further ordered that the fine amount, if realised, shall be paid to the complainant as compensation. The conviction and sentence was confirmed by the Sessions Court, Kalpetta in Crl.A.No.24/2016.
7. Assailing the said judgment of conviction and sentence accused has preferred this revision contending that the trial court and the appellate court miserably failed to appreciate the evidence in its correct perspective; that the accused has not borrowed any amount from the complainant and there was no legally enforceable debt; that the trial court and the appellate court failed to take note of the fact that O.S.No.180/2010 filed by the complainant against the accused before the Sub Court, Sulthanbathery for realization of the amount based on the very same cheque was dismissed by the Sub Court, Sulthanbathery with a finding that there was no financial transaction between the complainant and the accused and the complainant had no financial capacity to lend such a huge amount of Rs.5 lakhs. It was further contended that the complainant has not proved the execution of Ext.P1 cheque and therefore the conviction and sentence against the accused are liable to be set aside.
8. Per contra, the learned counsel for the complainant contended that the execution of Ext.P1 cheque by the accused for a legally enforceable debt stands proved and therefore there are no reasons at all to interfere with the impugned judgment.
9. The point for consideration is whether the impugned judgment needs any interference by this Court.
10. The version of the complainant, who was examined as PW1 is that in the 1st week of November 2009 accused approached him for a loan of Rs.5 lakhs, agreeing to repay the same within three months and accordingly, he lent an amount of Rs.5 lakhs to the accused. After three months, when he demanded back the amount, accused issued Ext.P1 cheque drawn on State Bank of India, Kainatty Branch. Though he presented Ext.P1 cheque for collection, it was returned dishonoured stating the reason ‘funds insufficient' and 'drawers signature incomplete’. Ext.P2 is the memo received from the bank. Ext.P3 is the copy of the notice sent to the accused intimating the factum of dishonour of the cheque. Ext.P
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.
The main legal point established is the significance of the presumption under Sec. 139 of the N.I. Act and the accused's burden to raise a probable defence to rebut the presumption.
Revisional jurisdiction limited to perversity, not reappreciating evidence. Section 139 NI Act presumption of debt from admitted cheque issuance rebuttable only by probable defence on preponderance o....
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 under Section 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof lies on the accused to provide a probable defense.
Criminal Law - Dishonoured of Cheque - Appeal against conviction - Petitioner in this case, did not raise any probable defence which would create doubts in mind of Court. Court find no reason to inte....
The main legal point established in the judgment is the successful rebuttal of the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act, leading to the failur....
The presumption of a legally enforceable debt under Sections 138 and 139 of the N.I. Act is strong and requires evidence to the contrary by the accused, which was not provided.
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