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HIGH COURT OF KERALA
A. BADHARUDEEN, J
PAVITHRAN K.V – Appellant
Versus
NALINAKSHAN M.V – Respondent
Crl.Rev.Pet 1163 2017
Negotiable Instruments - Criminal Procedure - Code of Criminal Procedure and Negotiable Instruments Act - Sections 397, 401, 138, 139, and 142 - The court reaffirmed the evidentiary burden on the accused under sections 118 and 139 of the Negotiable Instruments Act, emphasizing the statutory presumption of enforceable debt in dishonour cases and the limited revisional jurisdiction under the Criminal Procedure Code.
Fact of the Case:
The accused was convicted for issuing a cheque that was dishonoured due to insufficient funds, which led to prosecution under Section 138 of the Negotiable Instruments Act. After appeals and revisions, the court examined the validity of the conviction based on the evidential standards and the statutory presumptions.
Issues: Whether the trial court erred in its appreciation of evidence regarding the source of funds for the cheque issuance and the implications of Section 139 regarding presumption of enforceable debt.
Ratio Decidendi: The court determined that the statutory presumptions under Sections 138 and 139 of the N.I. Act favor the complainant, requiring the accused to rebut this presumption with a lesser evidential burden; the revisional power is not to be used to reassess evidence already considered by the trial and appellate courts.
Final Decision: The revision petition was partially allowed; the conviction was upheld with a modified sentence of simple imprisonment for one day and a fine of Rs. 1,30,000.
ORDER
Dated this the 24th day of July, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in S.T.C.No.274/2006 on the file of the Additional Chief Judicial Magistrate, Thalassery and the appellant in Crl.A.No.398/2006 of the Sessions Court, Thalassery. The respondents herein are the original complainant as well as State of Kerala.
2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State as well as the learned counsel appearing for the 1st respondent.
4. In this matter, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience), when cheque for Rs.1,25,000/- dated
15.12.2005 alleged to be issued by the accused for discharge of the said sum was dishonored for want of funds.
5. Since the accused failed to make the payment on demand, the complainant lodged a complaint under Section 142 of the N.I.Act.
6. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 examined and Exts.P1 to P7 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, DW1 examined on the side of the defence.
7. Thereafter, the trial court appraised the contention and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for nine months and to pay fine of Rs.1,30,000/- and in default of payment of fine simple imprisonment for one and half months also was imposed. Fine was ordered to be paid as compensation to the complainant.
8. Although, the accused challenged the conviction and sentence imposed by the trial court, before the Sessions Judge, the learned Sessions Judge also confirmed the conviction while modifying sentence imposed by the trial court as simple imprisonment for three months.
9. The learned counsel for the accused/revision petitioner, while attempting to upset the concurrent verdicts, pointed out two points. The first point argued is that, even though during cross-examination, PW1 deposed about documents to prove his source, when the accused filed petition before the trial court calling the bank details of the accused, the learned Magistrate dismissed the same holding that those documents are not material documents in this case. The learned counsel for the accused/revision petitioner also argued that proof of source to advance the money involved in the transaction is absolutely essential to succeed a prosecution alleging commission of offence punishable under Section 138 of the N.I. Act. In this connection, the learned counsel for the accused has placed a decision of the Apex Court reported inM.S. Narayana Memon alias Mani v. State of Kerala and Another [ AIR 2006 SC 3366 ]. Paragraph Nos. 49 and 50 of the said decision is extracted here under:
“49. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent:
(i) He deliberately has not produced his books of accounts. (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange.
50. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding.”
10. Going by the above paragraphs, that has been relied upon by the learned counsel for the accused/revision petitioner, in fact, in paragraph No.49, the Apex Court considered non production of books of accounts by Cochin Stock Exchange and it was held as a rule that the burden of the accused is not as heavy as that of the
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