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2025 Supreme(Online)(Ker) 46913
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.B. SNEHALATHA, J
BABU RAJ – Appellant
Versus
AJITHKUMAR – Respondent
CRL.REV.PET NO. 1073 OF 2019
For the Appellants/Petitioners: SRI.B.K.GOPALAKRISHNAN, SHRI.KRISHNAKUMAR S.
For the Respondents: SRI.P.RAMACHANDRAN, SMT.MAYA M N -PUBLIC PROSECUTOR
The court upheld the presumption of consideration for a cheque under the Negotiable Instruments Act, 1881, affirming that the accused failed to provide a credible defense against the dishonor.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138, 139, 118(a) - Cheque dishonor - The accused borrowed ₹3,50,000/- and issued a cheque in discharge of that debt, which was returned dishonored. Despite a legal notice, the amount was not repaid - The court affirmed the conviction, as the complainant's case was substantiated under the presumptions of Sections 118(a) and 139 of the Act. (Paras 16, 18)
(B) Presumption - Sections 118(a) and 139 of the N.I Act establish a presumption of consideration for issued cheques unless rebutted - The accused failed to establish any defense to contest the presumption, ensuring the integrity of the complainant's claim. (Paras 14, 17)
(C) Default/Non-Payment - The accused did not respond to the notice nor provide evidence to support his defense, leading the court to uphold the previous judgments. (Paras 13, 18)
Facts of the case:
The accused borrowed funds for business from the complainant and issued a cheque, which was dishonored due to insufficient funds. The complainant issued notice regarding dishonor, which went unanswered by the accused.
Findings of Court:
The court found no ground to unsettle the earlier conviction, emphasizing the legitimacy of the earlier findings in the trial and appellate court.
Issues: Whether the conviction needs any interference.
Ratio Decidendi: The court maintained that the duty lay with the accused to rebut the presumption generated by the cheque's issuance, and since no adequate defense was presented, the conviction is upheld.
Result: Revision petition dismissed.
| Table of Content |
|---|
| 1. overview of the dishonor and legal notice. (Para 2 , 5 , 7) |
| 2. defendant's failure to contest claims. (Para 13) |
| 3. legal presumption under n.i act. (Para 16) |
| 4. affirming conviction without interference. (Para 18) |
O R D E R
Challenge in this Criminal Revision Petition is to the judgment of conviction and order of sentence against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I Act).
2. The case of the complainant is that the accused who is a friend of him borrowed an amount of ₹3,50,000/- and in discharge of the said debt, accused issued Ext.P1 cheque dated 31.3.2016. Upon presentation of the cheque for encashment, it was returned dishonoured on 5.4.2016 due to insufficient funds in the account of the accused. In spite of receipt of lawyer notice caused to be send by the complainant intimating the factum of dishonour of cheque and demanding the amount covered by the cheque, accused neither paid the amount nor sent any reply. Accused thereby committed the offence punishable under Section 138 of N.I Act.
3. Accused pleaded not guilty to the accusation and denied issuance of Ext.P1 cheque in discharge of any debt or liability. 4. Before the trial court, the complainant was examined as PW1 and Exts.P1 to P3(b) were marked on his side. No defence evidence was adduced.
5. After trial, the learned Magistrate found the accused guilty under Section 138 of N.I Act and he was convicted and sentenced to undergo imprisonment till rising of the court and to pay a fine of ₹3,50,000/-. In default of payment of fine, to undergo simple imprisonment for two months. It was further directed that if the fine amount is realized, the same shall be paid to the complainant as compensation under Section 357(1) Cr.P.C. Though the accused preferred appeal as Crl.A No.259/2017, the same was dismissed by the learned Sessions Judge, confirming the conviction and sentence.
6. The point for consideration in this revision is whether the impugned judgment of conviction and sentence needs any interference by this Court.
7. The complainant who was examined as PW1 has testified that the accused who is a friend of him, had borrowed a sum of ₹3,50,000/- on 30.01.2016 for his business purpose and in discharge of the said liability, accused issued Ext.P1 cheque drawn on Federal Bank Ltd. Palakkad Branch. His further version is that upon presentation of Ext.P1 cheque for encashment, it was returned dishonoured on 5.4.2016 due to insufficient funds in the account of the accused. Ext.P2 is the dishonour memo issued from the bank. PW1 has further testified that upon receipt of Ext.P2 dishonour memo from the bank, he caused to sent Ext.P3 lawyer notice intimating the factum of dishonour of cheque and demanding the amount covered by Ext.P1 cheque. Ext.P3(a) is the postal receipt for sending the notice. According to PW1, though the accused accepted the notice, neither any reply was sent nor the amount covered by Ext.P1 cheque was paid. Ext.P3(b) is the acknowledgment card for receipt of notice. According to the complainant, since the accused failed to pay the amount covered by Ext.P1 cheque in spite of receipt of notice, accused has committed the offence punishable under Section 138 of N.I.Act.
8. Admittedly, Ext.P1 is a cheque issued from the account maintained by the accused at the Federal Bank, Palakkad branch. It is also not in dispute that Ext.P1 bears the signature of the accused. Ext.P2 memo issued from the bank would show that Ext.P1 cheque was dishonoured due to insufficient funds in the account of the accused.
9. As against the version of the complainant that the accused borrowed an amount of ₹3,50,000/- from him and issued Ext.P1 cheque in discharge of the said liability, the defence canvassed by the accused at the time when PW1 was cross- examined was that his wife who runs a firm had borrowed some amount from the complainant who is a money lender and while lending th
