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2016 Supreme(Online)(KER) 36424
HIGH COURT OF KERALA
SUNIL THOMAS, J
SOMANAD V P – Appellant
Versus
SREE GOKULAM CHITS & FINANCE CO PVT LTD – Respondent
CRIMINAL REVISION PETITION 780/2016
The court confirmed that a cheque’s due execution and the existence of a legally enforceable debt must be proven, and a mere claim of handing over a blank cheque is insufficient to obviate liability.
Headnote:
Negotiable Instruments - Section 138 - Summary of key provisions ensuring enforcement of debts through cheques, confirming that the existence of a legally enforceable debt and due execution of the cheque were proven.
Fact of the Case:
The petitioner executed a cheque to settle dues from a chitty transaction but claimed the cheque was handed over blank at the time of prize money receipt. The complainant presented evidence confirming the cheque's validity and debt existence.
Finding of the Court:
Both lower courts confirmed the execution of the cheque and the legally enforceable debt. The petitioner failed to present evidence disproving the complainant's claims or respond to legal notices.
Issues: Whether the execution of the cheque was proven and if there was a legally enforceable debt.
Ratio Decidendi: The court affirmed that the existence of a legally enforceable debt was established by the complainant, supported by adequate evidence, which outweighed the petitioner's unsupported defense.
Final Decision: Revision petition dismissed, upholding conviction and sentence with a three-month grace period for compliance.
ORDER
Revision petitioner assails the concurrent findings of the court below in a proceeding under section 138 of the Negotiable Instruments Act .
2. The case of the petitioner herein is that towards the discharge of the money due in a chitty transaction, which was prized, petitioner herein had executed and delivered Ext.P1 cheque. To prove the allegation, complainant relied not only on the evidence of PW1 but also that of Exts.P1, P2, P7 andP8. Ext.P7 ledger extract indicates the money due. The only defence set up by the accused was that a blank signed cheque was handed over at the time of receipt of the prize money. Virtually, revision petitioner admitted the signature and even that, prize money was received. The only question that remained was whether the execution has been proved. There was absolutely no evidence to show that the cheque was handed over at the time of receiving the prize money. There was no independent evidence to prove that nor there was any reply to Ext.P4 lawyer notice.
3. Having regard to the above facts, it is clear that both the courts have concurrently arrived at proper and correct conclusion Crl.R.P.780/16 that the evidence of PW1 proved the due execution of cheque and existence of a legally enforceable debt. Having regard to that, I am not inclined to interfere in the concurrent findings of fact, which is otherwise unassailable.
4. Regarding the sentence also, appellate court has modified the sentence to that of simple imprisonment till rising of the court and to pay fine of Rs.34,900/-. A default sentence was also incorporated. On the face of it, the above sentence also appears to be commensurate with the guilt proved. Having regard to this, I find no reason to interfere with the concurrent findings arrived at by the Courts on conviction as well as sentence. However on request, the petitioner is granted three months' time to discharge his liability.
In the result, revision petition is disposed of confirming the conviction and sentence. Revision petitioner is granted three months' time to undergo the sentence and to remit the fine as ordered. If the fine amount is recovered, it shall be given to the complainant as compensation. In the event of non-compliance, trial court shall initiate appropriate proceeding to execute the sentence, after expiry of three months.
