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HIGH COURT OF KERALA
A. BADHARUDEEN, J
K.J.PETER – Appellant
Versus
N.J.ROBIN – Respondent
Crl.Rev.Pet 746 2023
Negotiable Instruments - Cheque Dishonor - Section 138 of N.I. Act, Section 397, 401 of Cr.P.C - The court upheld the convictions and emphasized the rebuttable presumptions under Sections 118 and 139 of the N.I. Act, affirming that the complainant met their initial burden of proof, which the accused failed to rebut.
Fact of the Case:
The case arose from a dishonored cheque for Rs.1,50,000 issued by the accused to the complainant, leading to a prosecution under Section 138 of the N.I. Act. The trial court convicted the accused, a decision affirmed by the appellate court.
Finding of the Court:
The courts found the complainant met their evidentiary burden, validating the conviction under Section 138. The accused did not successfully rebut the presumption of the cheque's validity.
Issues: The main issue was whether the concurrent findings of the trial and appellate courts on the conviction of the accused could be disturbed.
Ratio Decidendi: The ratio focused on the sufficiency of evidence provided by the complainant to invoke the presumptions in favor of the validity of the cheque and the necessity for the accused to rebut that presumption.
Final Decision: The revision petition is dismissed, granting three months to pay the fine.
ORDER
Dated this the 27th day of July, 2023 This revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure (for short 'the Cr.P.C.' hereinafter), and the revision petitioner herein is the accused in C.C.No.1666 of 2009 on the files of Judicial First Class Magistrate Court-V, Ernakulam. The revision petitioner assails judgment in the above case, dated 30.01.2016 and judgment arising therefrom in Crl.Appeal No.47 of 2016, dated 29.10.2019.
2. Respondents herein are the original complainant and the State of Kerala.
3. Heard the learned counsel for the revision petitioner, learned counsel for the first respondent and learned Public Prosecutor for the second respondent in detail. On notice, Adv.Shaijan C.George appears for the first respondent. Perused judgment under challenge.
4. I shall refer the parties as 'complainant' and 'accused, for convenience.
5. The brief facts of the case put up by the complainant before the trial court are as under :
Pursuant to dishonour of cheque for Rs.1,50,000/- (One Lakh Fifty Thousand only) dated 26.09.2005 issued by the accused in favour of the complainant, the complainant initiated prosecution against the accused, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act' for short).
6. The court below secured the presence of the accused for trial and recorded evidence. During trial PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant.
7. On completion of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. and thereafter, opportunity was provided to him, to adduce defence evidence. Accordingly, DW1 was examined. Ext.D1 was marked on the side of the defence.
8. After hearing both sides and on appreciation of evidence, the trial court convicted the accused for the offence punishable under Section 138 of the N.I. Act as under :
“Accused is convicted under Section 138 of the Negotiable Instruments Act and sentenced to pay fine amount of Rs.1,75,000/- and in default of payment of fine the accused shall undergo simple imprisonment for a period of three months. If the fine amount is realised from the accused, the same shall be paid to the complainant as compensation under Section 357(1) of the Criminal Procedure Code.”
9. The revision petitioner/accused challenged the order of conviction and sentence before the appellate court by filing Crl.A.No.47 of 2016 and the learned Additional Sessions Judge- VIII, Ernakulam, as per judgment dated 29.10.2019 also confirmed the conviction and sentence imposed by the trial court.
10. Now the revision petitioner/accused assails concurrent findings of conviction and sentence. While arguing to unsettle the concurrent verdicts, it is fairly contended by the learned counsel for the revision petitioner that revision petitioner is not arguing the matter on merits and the revision petitioner will be satisfied if six months' time is granted to him to pay the amount.
11. Grant of time for six months is opposed by the learned counsel for the first respondent and he conceded grant of time limiting the same to three months. On perusal of the available materials in this case, the courts below given emphasis to the evidence of PW1 to prove that the accused borrowed Rs.1,50,000/- and in turn issued Ext.P1 cheque and the same was dishonoured for want of funds. Since the accused failed to shake the version of PW1 during cross examination, acting on the evidence of PW1, the courts below concurrently held that the complainant discharged his initial burden to the matter of transaction led to execution of the cheque and therefore, complainant could very well avail the benefit of presumptions under Sections 118 and 139 of the N.I.Act.
12. The law regarding presumptions under Sections 118 and
139 of the N.I. Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led
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