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2012 Supreme(Online)(KER) 24701
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
A C THOMAS – Appellant
Versus
P M THOMAS & STATE OF KERALA – Respondent
CRIMINAL REVISION PETITION 607/2007
The presumption of liability in cheque transactions under the N.I. Act is robust and can only be rebutted by compelling evidence to the contrary.
Headnote:
Negotiable Instruments - Cheque Dishonour - Section 138 of the N.I. Act - The court affirmed the conviction for cheque dishonour emphasizing the presumption of liability under Sections 118 and 139, concluding the evidence supported the prosecution’s case.
Fact of the Case:
The first respondent filed a complaint against the revision petitioner for dishonouring a cheque issued to settle a debt. The trial court convicted the petitioner on these charges. The petitioner contested the conviction on grounds of a lack of evidence directly linking him to the issuance of the cheque.
Finding of the Court:
The court found the prosecution’s case credible based on the testimony of the first respondent and the lack of substantial evidence supporting the defence’s claims. The presumption of liability under the N.I. Act was pivotal in the court's decision.
Issues: Whether the cheque was issued in discharge of any liability between the parties, and if the presumption under Sections 118 and 139 of the N.I. Act could be rebutted by the revision petitioner.
Ratio Decidendi: The court upheld the presumption of cheque liability under the N.I. Act, ruling that the defendant’s failure to provide credible evidence to counter the claimant’s assertions led to a confirmation of the conviction.
Final Decision: The revision petition is allowed in part; conviction upheld but sentence reduced to imprisonment till the rising of the court and a fine of Rs.5,000.
O R D E R
The Judicial Magistrate of First Class, Erattupetta in C.C.No.371/2002, a prosecution launched by the first respondent, found the revision petitioner guilty for offence under Section 138 of the N.I.Act. Accordingly, he was convicted and sentenced to simple imprisonment for three months. He was further directed to pay Rs.1,25,000/-, the cheque amount as compensation to the 1st respondent. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.38/2004 before the Sessions Judge, Kottayam. But he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.
2. I have heard Sri. Binu Paul, the learned counsel appearing for the revision petitioner. Perused the judgments and the evidence on record.
3. The 1st respondent launched the prosecution with a plea that the revision petitioner owed a sum of Rs.1,25,000/-
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to him and in discharge of the liability Ext.P1 cheque was issued and when sent for collection, it was returned dishonoured for insufficient funds and that despite the notice demanding discharge, the liability was not discharged.
4. In support of the prosecution, the 1st respondent had given evidence as PW1. Exts.P1 to P5 were also marked.
5. The defence of the revision petitioner is that he had some money transaction with the brother of PW1, to whom two blank cheques were issued as security and misusing one of the cheques, the prosecution was launched and that there was no transaction between the revision petitioner and the 1st respondent. In support of the defence, Dws 1 to 5 were examined and the revision petitioner was examined as DW6. DW1, the brother of PW1, denied the so called issuance of blank cheque to him by the revision petitioner. So, the evidence of DW1 cuts the root of the defence. Dws 2 to 5 were examined to bring on record regarding the money transaction between the revision petitioner and DW1, there was some mediation in the presence of the Panchayat President and that certain amounts due to DW1were paid off. Regarding the so called discharge, absolutely there is no evidence. Whatever may be that, the evidence of DWs 2 to 5 would no : 3:
way significant because there is no whisper in their evidence regarding any mediation in respect of the alleged transaction between the revision petitioner and the 1st respondent. It is also significant to note that none of the witnesses had mentioned that Ext.P1 is a cheque said to have been given to DW1. Therefore their evidence is not relevant.
6. The revision petitioner as DW6 had reiterated his contention in his evidence. In cross examination it was revealed that alleging forgery of Ext.P1, the revision petitioner launched prosecution against the 1st respondent. That ended in acquittal. That acquittal also would go against the defence advanced by the revision petitioner. In the above circumstance, the defence evidence would no way controvert the evidence of PW1.
7. The learned counsel for the revision petitioner would further submit that mere signature in the cheque is not sufficient enough to canvass the presumption in favour of the 1st respondent and that irrespective of the admission of the signature, the 1st respondent is bound to establish that there was liability between the 1st respondent and the revision petitioner and in discharge of that liability the cheque was issued. The learned counsel in support of his argument relied upon the decisions of this Court in Jose v. Joy (2008 (3) KLT : 4:
512) and Saju N.I v. T.K. Paulose ( 2009 3 KHC 626 ). I have carefully gone through the law laid down in those decisions. But, I find that the facts of the case on hand have no bearing with the facts of the cases in the decisions referred. Here in this case, in the event Dws 1 to 6 were not examined, probably the revision petitioner would have some case to argue. But in the light of the evidence of DWs 1 to 6, the revision petitioner cannot now co
