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2025 DIGILAW 1600 (KER)

Bastin P. C. S/o Cheru v. George

2025-06-05

M.B.SNEHALATHA

body2025
ORDER : 1. Revision petitioner/accused assails the judgment of conviction and order of sentence against him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act). 2. The parties shall be referred to as complainant and accused as before the trial court. 3. Complaint was filed alleging that on 20.5.2006, accused borrowed an amount of Rs. 15 lakhs from the complainant and in discharge of the said liability, accused issued Ext.P1 cheque dated 25.8.2006 drawn on UTI Bank Ltd. Tirupur. Upon presentation of Ext.P1 cheque for encashment, it was bounced due to insufficient funds in the account of the accused. Though the complainant caused to send Ext.P5 lawyer notice, it was returned as 'unclaimed'. Accused failed to pay the amount covered by Ext.P1 cheque and thereby committed the offence punishable under Section 138 of N.I.Act. 4. Accused pleaded not guilty to the accusation and denied issuance of Ext.P1 cheque in discharge of any debt or liability. 5. Before the trial court, PW1 and PW2 were examined and Exts.P1 to P6 were marked on the side of complainant. No defence evidence was adduced by the accused. 6. After trial, the learned Magistrate found the accused guilty under Section 138 of N.I.Act and he was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 22,98,000/-. In default of payment of fine, to undergo simple imprisonment for three months. It was further directed that fine if realised shall be given to the complainant under Section 357(1)(b) Cr.P.C. 7. The appeal preferred by the accused as Crl.A.No.505/2012 was dismissed by the Sessions Court, Thrissur confirming the conviction and sentence under Section 138 of N.I. Act. In this revision, accused calls into question the conviction and sentence against him. 8. The learned counsel for the accused contended that complainant failed to prove that the accused borrowed an amount of Rs. 15 lakhs and issued Ext.P1 cheque in discharge of the said debt. The learned counsel further contended that since the complainant failed to prove the transaction, no presumption under Section 118(a) and 139 N.I.Act can be drawn and therefore the verdict of conviction and order of sentence against the accused for the offence under Section 138 N.I.Act is liable to be set aside by allowing the revision. 9. The learned counsel further contended that since the complainant failed to prove the transaction, no presumption under Section 118(a) and 139 N.I.Act can be drawn and therefore the verdict of conviction and order of sentence against the accused for the offence under Section 138 N.I.Act is liable to be set aside by allowing the revision. 9. Per contra, the learned counsel for the complainant supported the findings of the learned Magistrate and learned Sessions Court and submitted that from the evidence adduced by the complainant, both oral and documentary, it stands established that on 20.5.2006 accused who is a relative of the complainant borrowed Rs. 15 lakhs and in discharge of the said liability, the accused issued Ext.P1 cheque. The learned counsel for the complainant placed reliance on the judgments rendered by the Hon'ble Apex Court in Bir Singh v. Mukesh Kumar, 2019 (1) KHC 774 , K.N. Beena v. Muniyappan and Ors. (2001) 8 SCC 458 , Laxmi Dyechem vs. State of Gujarat and Ors. (2012) 13 SCC 375 and contended that the presumption under Section 139 N.I Act entails an obligation on the court to presume that the cheque in question was issued by the drawer or accused in discharge of a debt or liability. It was contended by the learned counsel for the complainant that the onus to rebut the presumption under Section 139 of the N.I Act that the cheque has been issued in discharge of a liability is on the accused and in the case at hand accused has not rebutted the presumption. 10. It is not in dispute that Ext.P1 is a cheque issued from the account maintained by the accused with UTI Bank Ltd., Tirupur Branch. Accused would admit his signature in Ext.P1 cheque. Ext.P2 memo issued from the bank would show that Ext.P1 cheque was dishonoured due to insufficient funds in the account of the accused. 11. Now let us consider whether Ext.P1 cheque was issued by the accused in discharge of his liability to pay an amount of Rs. 15 lakhs to the complainant. 12. The categoric version of the complainant who was examined as PW1 is that accused who is a relative of him borrowed an amount of Rs. 11. Now let us consider whether Ext.P1 cheque was issued by the accused in discharge of his liability to pay an amount of Rs. 15 lakhs to the complainant. 12. The categoric version of the complainant who was examined as PW1 is that accused who is a relative of him borrowed an amount of Rs. 15 lakhs and in discharge of the said liability, accused issued Ext.P1 cheque on the same day and upon presentation Ext.P1 cheque was returned dishonoured due to insufficient funds in the account of the accused. Ext.P2 is the memo issued from the Bank. According to PW1 upon receipt of Ext.P2 memo, he caused to send lawyer notice to the accused intimating the factum of dishonour of cheque and demanding the amount covered by Ext.P1 cheque. Ext.P3 is the copy of notice. Ext.P4 is the postal receipt. Ext.P5 is the registered notice which was returned as 'unclaimed'. Complainant has further testified that in spite of Ext.P5 notice, accused failed to pay the amount covered by Ext.P1 cheque. 13. The defence canvassed by the accused was that there was some business transaction between him and the son of the complainant who was examined as PW2; that he used to purchase ornaments from PW2 for his jewellery and used to give it's price after selling the same; that Ext.P1 cheque was issued to PW2 as a security in the said business transaction. Subsequently, when there arose some dispute between him and PW2 qua the weight of ornaments purchased, he stopped his business transaction with PW2. To wreak vengeance, Ext.P1 cheque which was issued to PW2 as a security was misused by the complainant. 14. Section 118(a) of the N.I Act provides that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. 15. Section 139 of the N.I Act explicitly provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of N.I Act for the discharge, in whole or in part, of any debt or other liability. 16. In Rengappa v. Sri. 15. Section 139 of the N.I Act explicitly provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of N.I Act for the discharge, in whole or in part, of any debt or other liability. 16. In Rengappa v. Sri. Mohan, AIR 2010 SC 1898 , the Apex Court held that the presumption mandated by Section 139 of N.I.Act includes a presumption that there exist a legally enforceable debt or liability. This is of course a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. The Apex Court further held that the standard of proof for doing so is that of preponderance of probabilities. It was also held that in view of Section 139 of N.I Act there is an initial presumption, which favours the complainant. 17. The presumption under Section 139 N.I Act entails an obligation on the court to presume that the cheque in question was issued by the drawer or accused in discharge of a debt or liability. It is a rebuttable presumption. Though the accused would contend that Ext.P1 was a cheque issued to PW2 who is son of the complainant as a security for the business transaction, he failed to substantiate the said case canvassed by him. He failed to produce any material on record to rebut the presumption under Sections 118(a) and 139 of the N.I. Act. Per contra, the complainant has succeeded in establishing that Ext.P1 cheque was issued in discharge of his liability to pay the amount of Rs. 15 lakhs due to the complainant. 18. The evidence on record would show that accused and the complainant are relatives and there was close acquaintance between them. This Court finds no reason to disbelieve the version of PW1 that accused borrowed an amount of Rs. 15 lakhs from the complainant and in discharge of the said liability, accused issued Ext.P1 cheque. 19. 18. The evidence on record would show that accused and the complainant are relatives and there was close acquaintance between them. This Court finds no reason to disbelieve the version of PW1 that accused borrowed an amount of Rs. 15 lakhs from the complainant and in discharge of the said liability, accused issued Ext.P1 cheque. 19. In Bir Singh v. Mukesh Kumar, 2019 (1) KHC 774 , the Apex Court held as under: “A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.” 20. In para 40 of the decision cited Supra, the Apex Court further held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 21. The learned counsel for the accused contended that there was no service of notice to the accused as contemplated under Section 138 of N.I. Act and therefore the offence under Section 138 of N.I.Act will not be attracted. It was urged by the learned counsel that accused has no such address as shown in Ext.P5 unclaimed notice. 22. It is in evidence that upon receipt of dishonour memo from the Bank, complainant caused to issue Ext.P5 notice to the accused intimating the factum of dishonor of cheque and demanding the amount covered by Ext.P1 cheque. Ext.P5 notice was returned with endorsement 'addressee absent', 'intimation served', 'unclaimed'. Thus, it is evident that there is deliberate non acceptance of notice by the accused. The endorsement in Ext.P5 would show that Ext.P5 was returned with endorsement as 'unclaimed”. The endorsement in Ext.P5 would also reveal that in spite of intimation, accused failed to collect the notice. Ext.P5 notice was returned with endorsement 'addressee absent', 'intimation served', 'unclaimed'. Thus, it is evident that there is deliberate non acceptance of notice by the accused. The endorsement in Ext.P5 would show that Ext.P5 was returned with endorsement as 'unclaimed”. The endorsement in Ext.P5 would also reveal that in spite of intimation, accused failed to collect the notice. The correctness of the endorsement made by the postman can be rebutted by the addressee by adducing evidence to the contrary.But the accused failed to do so. 23. The initial burden to prove that upon receiving dishonor memo from the Bank, notice was sent to the drawer of the cheque intimating the factum of dishonor and demanding the amount covered by the cheque is on the complainant. Once that initial burden is discharged, and if the drawer of the cheque disputes the address shown on an unclaimed notice, the burden of proof shifts to the drawer of the cheque to demonstrate that the address shown therein is not his address. The drawer of the cheque needs to provide satisfactory and convincing evidence to show that the address shown is not his address. The drawer cannot frustrate the legal process by not receiving the notice or by shifting residences without informing the complainant. Therefore, I find no merit in the contention put forward by the learned counsel for the accused that there was no service of notice. 24. In C.C. Alavi Haji v. Palappetty Muhammed and another, (2007) 6 SCC 555 , the Hon’ble Supreme Court observed that where the payee despatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act, 1897 would be attracted; the requirement of Clause (b) proviso to Section 138 of Negotiable Instruments Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge of the notice was brought to his address. 25. The evidence on record would show that the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge of the notice was brought to his address. 25. The evidence on record would show that the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. It also stands established that Ext.P1 cheque issued by the accused was dishonoured due to insufficient funds in the account of the accused. It stands proved that Ext.P1 cheque issued by the accused in discharge of a legally enforceable debt was dishonoured due to insufficient funds in the account of the accused and in spite of service of notice, accused failed to pay the amount covered by Ext.P1 cheque. 26. The learned Magistrate and the learned Sessions Judge have analysed the evidence in its correct perspective and this Court finds no reason to interfere with the impugned judgment of conviction and order of sentence. 27. The Criminal Revision Petition is devoid of any merit and accordingly stands dismissed. The trial court shall take steps to execute the sentence.