High Court Kerala High Court

Jayakumar V.K. vs Sasikala @ Latha on 26 November, 2010

Kerala High Court
Jayakumar V.K. vs Sasikala @ Latha on 26 November, 2010
       

  

  

 
 
  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.
                 - - - - - - - - - - - - - - - - - - - - - -
                  Crl.R.P.No. 1156 of 2002
                 - - - - - - - - - - - - - - - - - - - - - -
          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

Crl.R.P.No. 1156 of 2002

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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

Crl.R.P.No. 1156 of 2002

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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

Crl.R.P.No. 1156 of 2002

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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

Crl.R.P.No. 1156 of 2002

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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.

Crl.R.P.No. 1156 of 2002

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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

Crl.R.P.No. 1156 of 2002

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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

Crl.R.P.No. 1156 of 2002

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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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