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2025 Supreme(Ker) 1143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.G. AJITHKUMAR, J.
S.R. Sivakumar – Petitioner
Versus
Dr. Artist K.G. Nair and Anr. – Respondents
Crl.R.P. Nos.348 & 349 of 2019
Decided On : 09-01-2024
For the Petitioner: S. Chandrasekharan Nair.
For the Respondents: Adithya Rajeev, Girish Kumar M.S., Smt. Pushpalatha MK, Sr. Public Prosecutor.
The presumption of liability under Section 139 of the Negotiable Instruments Act is established upon admission of cheque issuance, and the accused bears the burden to rebut this presumption with credible evidence.
Headnote:
(A) Negotiable Instruments Act, 1881 - Section 138 and 139 - Accused convicted for issuing cheques without sufficient funds - Presumption of liability under Section 139 established due to admission of cheque issuance - Evidence insufficient to rebut presumption - Revision petitions disposed of with modified sentence. (Paras 2, 4, 10, 19)
(B) Burden of proof - The accused must rebut the presumption of liability under Section 139 with credible evidence - The standard of proof is preponderance of probabilities. (Paras 10, 11, 12)
(C) Revision jurisdiction - High Court cannot re-appreciate evidence but must ensure legality and propriety of lower court's findings. (Paras 17, 18)
Facts of the case:
The petitioner issued two cheques for Rs.1,50,000/- and Rs.1,80,000/- for a transaction involving gold ornaments, which were returned unpaid. The petitioner claimed the cheques were issued as security, but failed to substantiate this claim.
Findings of Court:
The trial court found the petitioner guilty, holding that the presumption under Section 139 was not rebutted. The High Court confirmed the conviction but modified the sentence.
Issues: Whether the petitioner successfully rebutted the presumption of liability under Section 139 of the N.I. Act.
Ratio Decidendi: The court ruled that the admission of cheque issuance by the petitioner established the presumption of liability, which he failed to rebut with credible evidence.
Result: Revision petitions allowed in part; conviction confirmed with modified sentence.
ORDER :
(P.G. AJITHKUMAR, J.)
These revision petitions arose on a common judgment involving the same parties. Hence, these revision petitions are disposed of by this common order.
2. The petitioner is the accused in S.T.Nos.57 and 58 of 2014 on the files of the Judicial Magistrate of the First Class-VII, Thiruvananthapuram. The offence alleged is one punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The complaints are filed by the 1st respondent with the following allegations,-
In relation to a transaction concerning gold ornaments, the petitioner had issued two cheques; one for Rs.1,50,000/- and the other for Rs.1,80,000/-. The cheques were presented for encashment, but returned unpaid due to the insufficiency of funds in the account of the petitioner. Demand notices were issued. The petitioner received the notices, but failed to repay the amount.
3. The petitioner appeared before the court and denied the accusation. At the trial PW1 was examined and Exts.P1 to P8 were marked. After closing the evidence on the side of the prosecution, the petitioner was questioned under Section 313(1)(b) of the Code in both cases. He stated that 128.300 grams of gold entrusted by the 1st respondent with him in the form of 16 gold coins, were converted into ornaments and returned. The weight of the gold ornaments returned was 120.200 grams. The balance was lost on account of the making of gold ornaments. His further assertion was that on the insistence of the 1st respondent and his wife, two signed cheques and a signed paper affixed with revenue stamp were given by him besides receipt. At the time of returning the gold ornaments, the receipt was given back; but the cheques were retained on the pretext that after confirming the weight of the ornaments, the matter would be settled. In order to substantiate his case, he examined DWs.1 and 2. Although two documents were tendered in evidence, the trial court did not accept the same for want of proof.
4. The trial court, after appreciating the evidence on record, found the petitioner guilty and convicted. It was held that having admitted execution of Exts.P1 and P2 cheques, it was the burden of the petitioner to rebut the presumption available under Section 139 of the N.I. Act. The evidence tendered by him was found insufficient to rebut the presumption. Accordingly, the trial court refused to accept the contentions of the petitioner. Before the appellate court, similar contentions were raised by the appellants, but he was unsuccessful.
5. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned Public Prosecutor.
6. The petitioner during examination under Section 313(1)(b) of the Code admitted that he gave two cheques with his signatures to the complainant. His case is that the cheques along with one signed blank stamp paper were issued on the insistence of the 1st respondent when he handed over 16 gold coins to the petitioner for making gold ornaments.
7. The learned counsel for the 1st respondent contended that in the light of the said admission, presumption under Section 139 of the N.I. Act is liable to be drawn concerning Exts.P1 and P2. The learned counsel for the petitioner, on the other hand, would submit that in the facts and circumstances of this case, failure to furnish details regarding the transaction in the complaint or in the proof affidavit of PW1, who is the power of attorney of the 1st respondent, no such presumption is possible.
8. The courts below took the view that the admission by the petitioner that he gave signed cheques to the 1st respondent is enough to draw a presumption under Section 139 of the N.I. Act. Apart from the said admission by the petitioner, DW1, an ex-employee of the petitioner, deposed before the court that it was he who handed over the cheques of the petitioner to the 1st respondent. The said version of DW1 together with the admission of the petitioner makes the evidence tendered by PW1 rega
