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2012 Supreme(Online)(KER) 38581
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
A M NAJEEB – Appellant
Versus
A NAJEEB – Respondent
CRIMINAL REVISION PETITION 2610/2005
The burden of proof lies on the accused to disprove claims in dishonor of cheques under the Negotiable Instruments Act.
Headnote:
Negotiable Instruments - Criminal Procedure - Act Section List - Sections 138, 313 of Negotiable Instruments Act and Code of Criminal Procedure - The court upheld the conviction under Section 138 emphasizing the sufficiency of evidence supporting dishonored cheques, legitimacy of notice served, and the burden of proving the defense claim rested with the accused.
Fact of the Case:
The revision petitioner was prosecuted for issuing a dishonored cheque under Section 138 of the Negotiable Instruments Act after the cheque was returned due to insufficient funds. The petitioner claimed the cheque was misused by an employee, but the prosecution established its legitimacy.
Finding of the Court:
The court found no compelling evidence to disbelieve the prosecution's case, affirming that the defense did not adequately support its claims regarding the cheque's misuse and the alleged employment relationship.
Issues: The main issues involved whether the notice was properly served and if the defense's argument regarding employment and cheque misuse was credible.
Ratio Decidendi: The decision reaffirmed that the accused must provide convincing evidence to counter the prosecution's claims, particularly regarding service of notice and the legitimacy of the cheque's issuance.
Final Decision: The Revision Petition is dismissed; the petitioner is granted two months to remit compensation.
O R D E R
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Revision petitioner was prosecuted by the 1st respondent in S.T.No.27/2010 on the file of the Judicial Magistrate of the 1st Class-V (Special Court for Mark List Cases), Thiruvananthapuram, accusing offence under Section 138 of the Negotiable Instruments Act with a plea that the revision petitioner owed a sum of Rs.60,000/- and in discharge of the same, a cheque, which was marked as Ext.P1 dated 26.2.1997, was issued and that when presented for collection it was returned dishonoured for insufficient funds and that the notice demanding discharge was returned unclaimed and that the liability was not discharged.
2. The revision petitioner entered appearance in response to the process and pleaded not guilty when the particulars of the offence were read over and explained. Therefore, he was sent for trial. The 1st respondent was examined as PW1. Exts.P1 to P3 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. The revision petitioner denied the incriminating evidence and further stated that the 1st respondent was an employee under the revision petitioner and that the revision petitioner had entrusted blank signed cheques for business purpose and misusing one of the cheques so got in possession, the prosecution was launched. To support the defence version, the revision petitioner entered the witness box and was examined Exts.DW1. Exts.D1 to D3 were also marked. On appraisal of the evidence, the learned Magistrate arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for one month and ordered to pay Rs.400/- as cost to the 1st respondent.
3. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.No.400/2002 before the Sessions Judge, Thiruvananthapuram. Contending that the sentence awarded as well as the compensation ordered is too inadequate, the 1st respondent preferred Crl.R.P.15/2003. The
1st Additional Sessions Judge to whom the appeal and the revision were made over, by the impugned judgment dated 26.2.2005, while dismissing the appeal, allowed the revision and modified the sentence to imprisonment till the rising of the court with order to pay Rs.60,000/- as compensation to the 1st respondent. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in Crl.R.P.No.15/2003, this Revision Petition is preferred.
4. I have heard Adv. Sri.M.R.Rajesh, the learned counsel appearing for the revision petitioner and Adv.Sri.Jelson, the learned counsel representing the counsel for the 1st respondent. Perused the evidence on record as well as the judgments impugned.
5. The 1st respondent as PW1 had given evidence in support of the borrowal, issuance of cheque, dishonouring of the same for insufficient funds, issuance of notice demanding discharge and return of the notice as unclaimed. Exts.P1 to P3 support the evidence of PW1. Per contra, there is the evidence of DW1. There is now oath against oath. The question is as to who is to be believed. Though PW1 was subjected to searching cross examination, no material was disclosed to disbelieve him. Since there is no material on record to disbelieve PW1, the issue is to be answered in favour of the 1st respondent. The evidence of the revision petitioner is to be rejected.
6. The learned counsel for the revision petitioner would contend that the 1st respondent had on an earlier occasion stealthily obtained a cheque drawn in favour of the revision petitioner and was got encashed by opening an account in the name of the revision petitioner with the address of the 1st respondent. In support of that contention reliance was given to Ext.D1. In cross examination it is suggested to PW1 that a Demand Draft was stealthily removed and got it encashed by opening an account. What is suggested in cross examination is contrary to what is deposed by DW1. Addin
