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2024 Supreme(Online)(KER) 13476
HIGH COURT OF KERALA
A. BADHARUDEEN, J
PADMA CONDUCTORS PVT. LTD – Appellant
Versus
MIRC ELECTRONICS – Respondent
CRL.REV.PET NO. 741 OF 2016
For the Appellants/Petitioners: V.A.JOHNSON
For the Respondents: JACOB CHACKO
Insufficient evidence regarding cheque's transaction results in setting aside conviction; further evidence allowed for clarity.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code - Sections 397 and 401 - Revision of conviction and sentence by trial court - Conviction based on insufficient evidence regarding transaction led to execution of cheque - Court held that the complainant must prove the issuance and execution of the cheque, and opportunity granted to adduce further evidence. (Paras 4, 17, 21)
(B) Burden of Proof - Complainant's failure to provide direct knowledge regarding cheque execution- Standard of evidence required by complainant not met. (Paras 10, 12, 18)
Facts of the case:
The complainant alleged dishonor of a cheque issued by the accused for discharging a liability; the courts found the accused guilty, but the defense argued that the evidence did not sufficiently prove the transaction regarding the cheque’s issuance.
Findings of Court:
The court found that the complainant did not establish the necessary facts surrounding the cheque's execution, and thus the conviction was set aside, allowing for further evidence to be presented.
Issues: Whether the evidence provided by the branch accountant sufficed to prove the transaction that led to the cheque’s issuance.
Ratio Decidendi: The court emphasized that the power of attorney holder’s lack of direct knowledge renders such evidence insufficient, reaffirming that the initial burden of proof lies with the complainant and must be adequately discharged to uphold presumption under the N.I. Act.
Result: Criminal Revision Petition allowed, convictions and sentences set aside, matter remanded back for fresh consideration.
| Table of Content |
|---|
| 1. filing of a complaint under section 138 of the n.i. act (Para 1 , 4) |
| 2. establishing proof of cheque execution essential for conviction. (Para 5 , 7 , 19) |
| 3. examination of evidence by branch accountant lacks direct knowledge for transaction. (Para 8 , 11 , 12) |
| 4. revision granted for additional evidence to clarify cheque transaction. (Para 21) |
ORDER
This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure . The revision petitioners are accused Nos.1,2 and 6 in C.C.No.1168/2009 on the files of the Judicial First Class Magistrate No.III, Palakkad. The revision petitioners assail judgment dated 05.10.2013 in the above case as well as the judgment in Crl.Appeal No.331/2013 before the Additional Sessions Court-V, Palakkad. The respondents herein are the complainant as well as the State of Kerala.
2. Heard the learned counsel for the revision petitioners as well as the learned counsel for the respondents in detail. Perused the lower court records.
3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience.
4. The complainant lodged complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) contending that the complainant used to supply electrical equipments and products to the 6th accused on behalf of accused 1 to 5 and the 1st accused issued cheque for Rs.7,83,929.50 dated 18.04.2009 drawn on South Indian Bank signed by the 2nd accused as the Director of the 1st accused for discharging the liability of the 6th accused, as on 18.04.2009. On presentation of the cheque, the same got dishonoured for want of funds. Consequently, notice of dishonour was issued and the amount covered by the cheque was demanded, but the accused did not heed the demand.
5. The trial court took cognizance of this matter and issued summons to the accused and proceeded with trial on compliance of the legal formalities.
6. During trial PW1 examined and Exts.P1 to P21 were marked on the side of the complainant. Exts.D1 to D2 were marked as defence evidence.
7. On hearing both sides, the learned Magistrate found that accused Nos.3, 4 and 5 were not guilty, while holding that accused Nos.1, 2 and 6 were guilty for the offence punishable under Section 138 of the N.I Act and accused 1 and 6 were sentenced to pay compensation of Rs.7,83,929.50 equally to the complainant under Section 357(3) of Cr.P.C. The 2nd accused was sentenced to undergo simple imprisonment for a period of 2 years.
8. On appeal, the learned Sessions Judge concurred the finding of conviction while modifying the sentence imposed against the 2nd accused to 7 months.
9. While assailing concurrent verdicts of conviction and sentence, the learned counsel for accused 1, 2 and 6/revision petitioners submitted that in this matter, the transaction, issuance and execution of Ext.P2 cheque not at all proved, as mandated by law. The learned counsel also submitted that the complaint was filed by MIRC Electronics Limited represented by its Branch Accountant Albi. At the time of evidence, one Pradeep Menon, S/o.Achuthannair, was examined to prove the transaction, issuance and execution of the cheque and he was the power of attorney holder of the company and he did not have any direct knowledge regarding the transaction, issuance or execution of the cheque and, therefore, his evidence is quite insufficient to prove the transaction and execution of Ext.P2 by the accused as contended by the complainant and for the sole reason the complainant failed to discharge his initial burden in the matter of transaction led to execution of Ext.P2. Therefore, the conviction and sentence imposed by the trial court and modified by the appellate court deserve interference and accused 1, 2 and 6 are liable to be acquitted.
10. The learned counsel for accused 1, 2 and 6 placed decisions of this Court reported in [ 2016 (3) KHC 229 : 2016 (2) KLD 180 : 2016 (2) KLJ 792 : I
