IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1156 of 2002()
1. JAYAKUMAR V.K. S/O. KUTTAPPAN,
... Petitioner
Vs
1. SASIKALA @ LATHA, AGED 34 YEARS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.C.M.SURESH BABU
For Respondent :SRI.P.P.JACOB
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :26/11/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 1156 of 2002
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Dated this the 26th day of November, 2010
O R D E R
This revision petition is filed by the complainant in C.C.
No. 9 of 1998 on the file of the Judicial First Class Magistrate
Court -I, Ernakulam. The first respondent herein was the accused
in that case, which was filed by the complainant alleging
commission of the offence under Section 138 of the N.I. Act.
2. The case of the complainant is as follows. The accused
issued a cheque for Rs.70,000/- dt.25.11.1997 drawn on the
Amballoor Janatha Service Co-operative Bank Ltd.,
Kanjiramattom branch to the complainant towards the discharge
of the loan availed by the accused. When it was sent for
collection, it was dishonoured for the reason ‘funds insufficient’
vide memo dt.11.12.1997. Notice dt. 16.12.1997 was issued to
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the accused informing her about the dishonour of the cheque and
demanding the payment. The accused received the notice on
17.12.1997. Even after receipt of the Notice, she failed to pay the
amount. Hence the complaint was filed.
3. In the Magistrate Court, on the side of the complainant, the
complainant himself was examined as PW1 and Exts.P1 to P5 were
marked. On the side of the defence, Dws.1 and 2 were examined and
Ext.D1 was marked. Ext.C1 was marked as court exhibit. The learned
Magistrate, on considering the evidence, convicted the accused under
Section 138 of the N.I. Act and she was sentenced to undergo S.I. for a
period of six months and to pay a sum of Rs.70,000/- to the
complainant as compensation. Against that conviction and sentence,
the accused filed Crl.A.No. 118 of 2000 before the Vth Additional
Sessions Court, Ernakulam, which was allowed and the conviction ad
sentence was set aside and the case was remanded to the lower court
for fresh disposal for taking further evidence regarding genuineness of
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the signature contained in Ext.D1 and regarding the source of the
complainant for raising the money alleged to have been lent to the
accused. Against that judgment the complainant filed this Crl. R.P.
4. Heard learned counsel for the revision petitioner and the
learned counsel for the first respondent.
5. The learned counsel for the revision petitioner submits that the
lower appellate court failed to notice the fact that it was the specific
case of the complainant that the accused herself had actually signed the
cheque before him and the burden is on the accused to show that the
said signature on the cheque is not put by her. The learned counsel for
the revision petitioner submitted that the lower appellate court went
wrong in attributing the entire burden on the complainant to prove the
source of income and consideration, which is against the legal
presumption under Sections 118 and 139 of the N.I. Act. The learned
counsel further submitted that the lower appellate court failed to notice
the fact that no reply was sent by the accused to the notice issued by the
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complainant. The learned counsel for the first respondent supported the
judgment of the lower appellate court to some extent.
6. When the complainant was examined as PW1, he deposed that
the accused borrowed an amount of Rs.70,000/- from him and executed
Ext.P1 cheque dt.25.11.1997 for that amount. When that cheque was
sent for collection, it was dishonoured for the reason ‘funds insufficient’
in the account of the accused. Ext.P2 is the memorandum of dishonour
dt.11.12.1997 and Ext.P3 is the copy of notice dt.16.12.1997. Ext.P4 is
the postal receipt and Ext.P5 is the acknowledgment card showing that
the accused received the notice on 17.12.1997. The complaint is filed
on 6.1.1998. Hence it is clear that the complainant has filed complaint
after complying with all the legal formalities.
7. Ext.C1 is the certified extract of the account of the accused,
which shows that on 11.12.1997 when Ext.P1 cheque came up for
collection there was only Rs.265/- outstanding in the said account.
The accused has no case that there was sufficient funds in her account
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when Ext.P1 cheque came up for collection. She has not cross
examined PW1 on that point. Hence it is proved from Exts.P2 and
Ext.C1 that Ext.P1 cheque was dishonoured for want of sufficient funds
in the account of the accused.
8. When examined as DW1, the case of the accused is that she
had not borrowed any amount from the complainant and she has not
issued Ext. P1 cheque to the complainant and that Ext.P1 is a cheque
lost from her, which was misused by the complainant.
9. DW2 is the Branch Manager of Amballoor Janatha Service
Co-operative Bank, Kanjiramattom branch. He deposed that the
accused has an account with his bank. Ext.C1 is the certified extract of
the said account. He produced the specimen signature card of the
accused, copy of which is Ext.D1. He deposed that the signature of the
accused in the specimen signature card and that in Ext.P1 are entirely
different. He got intimation from the accused that two cheque leaves
belonging to her were lost. Intimation was given by her on 12.11.1998.
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However, those two cheques have not come up for collection. No
complaint is received from the accused regarding the loss of Ext.P1
cheque.
10. According to PW1, the accused signed Ext.P1 cheque in his
presence. DW2 admitted that Ext.P1 cheque was issued from his bank.
DW1 admitted that she lost only one cheque and she intimated the
matter to the bank. She admitted that she received Ext.P3 notice
regarding dishonour of the cheque, but she did not send any reply. If
the case of the accused was true, the accused should have sent a reply
explaining her case. DW2 deposed that the cheques alleged to have
been lost by the accused have not come up for collection in that bank.
Therefore, the version of DW1 that she lost Ext.P1 cheque and the same
was intimated to the bank is false.
11. On appreciating the testimony of PW1 in the light of the
defence evidence, the learned Magistrate is perfectly justified in finding
that Ext.P1 cheque was issued by the accused. Since the execution of
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Ext.P1 cheque is proved, the presumption under Sections 118 and 139
of the N.I. Act would apply and the burden is on the accused to rebut
that presumption. The evidence adduced from the side of the accused is
not sufficient to rebut that presumption.
12. The finding of the lower appellate court that in all
probabilities a person having a balance of Rs.300/- in his credit will
not issue a cheque for Rs.70,000/- to his creditor because such an act
would expose him to penal consequences under Section 138 of the N.I.
Act, is erroneous. It has come out in evidence that the complainant
advanced Rs.70,000/- when the accused was accompanied by her
father, who is well known to the complainant, on the assurance of
returning the same on getting the grant for the S.S.I. unit.
13. The order of remand passed by the court below for further
evidence regarding the genuineness of Ext.D1 and regarding the source
of the complainant for raising the money lent to the accused is totally
unwarranted, since the same is under the clutches of the presumption
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under Sections 118 ad 139 of the N.I. Act. and the burden to rebut the
same is on the accused by adducing evidence. Therefore the
judgment of the appellate court remanding the case to the court below
has to be set aside.
14. Since the complainant has proved all the ingredients of the
offence punishable under Section 138 of the N.I. Act, the learned
Magistrate is fully justified in convicting the accused under Section 138
of the N.I. Act and the same is confirmed.
15. In the decision reported in Damodar S. Prabhu v.
Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a
case of dishonour of cheques, compensatory aspect of the remedy
should be given priority over the punitive aspect. Considering the
facts and circumstances of the case, I am of the view that
sentencing the accused to pay a fine of Rs.70,000/- would meet the
ends of justice. The said fine shall be paid as compensation under
Section 357(1) of Cr.P.C. The revision petitioner is permitted
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either to deposit the said fine amount before the Court below or
directly pay the compensation to the complainant within six
months from today and produce a memo to that effect before the
trial Court, in case of direct payment. If she fails to deposit or pay
the said amount within the aforesaid period, she shall suffer simple
imprisonment for three months by way of default sentence.
16. In the result, this Revision Petition is allowed. The judgment
in Crl.A.No. 118 of 2000 on the file of the Vth Additiona; Sessions
Court, Ernakulam remanding the case to the court below is set aside
and the conviction of the accused in C.C. 9 of 1998 on the file of the
Judicial First Class Magistrate Court -I, Ernakulam under Section 138
of the N.I. Act is confirmed and the sentence is modified as above.
(M.L. JOSEPH FRANCIS)
Judge
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