Sunitha vs Sheela Antony

AGAINST THE JUDGMENT IN CRA 187/2016 DATED 28-02-2019 OF ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA AGAINST THE JUDGMENT DATED 06.08.2016 IN CC 5611/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS,IRINJALAKUDA

REVISION PETITIONER/APPELLANT IN CRL.APPEAL/ACCUSED:

SUNITHA AGED 49 YEARS W/O.AJAYAN, PUZHAKKAL HOUSE, KOZHICHIRA DESOM, KARIVANNUR PO, PORATHISSERY, MUKUNDAPURAM TALUK, THRISSUR, REPRESENTLY RESIDING AT PUZHAKKAL HOUSE, MADAYIKONAM PO, THALIYACONAM, THRISSUR-680712

BY ADVS. SRI.P.G.JAYASHANKAR KUM.P.K.RESHMA (KALARICKAL)

RESPONDENTS/RESPONDENTS IN CRL.A/COMPLAINANT & STATE:

1 SHEELA ANTONY AGED 54 YEARS W/O.ANTONY, KAVUNGAL HOUSE, KOZHICHIRA DESOM, KARIVANNUR, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR-680711

2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

R1 BY ADV. SRI.JITHIN BABU A R1 BY ADV. SRI.K.R.ARUN KRISHNAN SRI AJITH MURALI-PP

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.02.2020, THE COURT ON 20.05.2020 PASSED THE FOLLOWING: Crl.R.P.No.600/2019 2

"CR"

R.NARAYANA PISHARADI, J ************************ Crl.R.P.No.600 of 2019 -------------------------------------------- Dated this the 20th day of May, 2020

ORDER

The revision petitioner is the accused in the case

C.C.No.5611/2011 on the file of the Court of the Judicial First

Class Magistrate, Irinjalakuda.

2. The aforesaid case was instituted upon the complaint

filed against the petitioner by the first respondent for an offence

punishable under Section 138 of the Negotiable Instruments Act,

1881 (hereinafter referred to as 'the Act').

3. The case of the complainant is as follows: The

complainant and the accused are neighbours. The complainant

had lent money to the accused on various occasions. On

20.03.2011, the complainant went to the house of the accused

and demanded repayment of the money. The complainant and

the accused verified the accounts and finally settled the amount Crl.R.P.No.600/2019 3

at Rs.4,50,000/-. In order to discharge the aforesaid liability, the

accused executed and issued a cheque dated 07.04.2011 for

Rs.4,50,000/- to the complainant. The complainant presented the

cheque in the bank. It was returned unpaid for the reason that

there was no sufficient amount in the account of the accused.

The complainant sent a lawyer notice to the accused demanding

payment of the amount of the cheque. The accused received the

notice. She sent a reply raising untenable contentions. She did

not pay the amount of the cheque.

4. The accused pleaded not guilty. During the trial of the

case, the complainant got herself examined as PW1 and Exts.P1

to P6 documents were marked on her side. DW1 was examined

on the side of the accused.

5. The trial court found the accused guilty of the offence

under Section 138 of the Act and convicted her thereunder. The

trial court sentenced her to undergo simple imprisonment for a

period of three months and also directed her to pay an amount

of Rs.4,50,000/- as compensation to the complainant. The trial

court also directed that, in default of payment of compensation, Crl.R.P.No.600/2019 4

the accused shall undergo simple imprisonment for a period of

three months.

6. The petitioner/accused filed Crl.A.No.187/2016

challenging the order of conviction and sentence passed against

her by the trial court. The appellate court confirmed the

conviction against the petitioner but modified the sentence

imposed on her by the trial court. The appellate court modified

the substantive sentence of imprisonment imposed on the

petitioner and reduced it to imprisonment till the rising of the

court and maintained the direction to pay compensation of

Rs.4,50,000/- to the complainant but reduced the default

sentence of imprisonment to a period of 45 days.

7. The concurrent verdicts of guilty and conviction made

against her by the courts below and the sentence imposed on her

by the appellate court are challenged by the accused in this

revision petition.

8. Heard the learned counsel for the revision petitioner and

also the first respondent/complainant.

Crl.R.P.No.600/2019 5

9. Learned counsel for the petitioner has raised the

following contentions before this Court. (1) The petitioner had

no occasion to issue any cheque to the complainant in discharge

of a pre-existing liability. (2) The complainant had no financial

capacity to lend an amount of Rs.4,50,000/-. (3) The sentence of

fine was imposed on the petitioner by the courts below without

taking into consideration her capacity to pay the amount.

10. There was a delay of one day in filing the complaint.

The delay was condoned by the trial court as per the order

passed in the application (Crl.M.P.No.6701/2011) filed by the

complainant for that purpose.

11. The plea raised by the petitioner that she had no

occasion to issue any cheque to the complainant in discharge of a

pre-existing liability, in other words, amounts to denial of

execution of Ext.P1 cheque for Rs. 4,50,000/- and delivery of the

same by her to the complainant.

12. When examined as PW1, the complainant has given

evidence in examination-in-chief in tune with the averments in

the complaint. She has given evidence that she went to the Crl.R.P.No.600/2019 6

house of the accused and demanded repayment of the amount

lent by her and the accounts were settled for Rs.4,50,000/- and

the accused signed and gave her Ext.P1 cheque for

Rs.4,50,000/- in discharge of the liability. She has stated on

cross examination that the accused had brought the filled up

cheque from inside the house and that the accused signed the

cheque in her presence.

13. The accused has not disputed or denied the signature in

the cheque. She admits that Ext.P1 cheque for Rs. 4,50,000/-

bears her signature. Her plea is that she had borrowed a total

amount of Rs.2,90,000/- from the complainant in instalments

and that she had given five signed blank cheques to the

complainant on those occasions and that the complainant has

misused one of the aforesaid cheques and filed the case. No

evidence was adduced by the accused to prove the plea that she

had given signed blank cheques to the complainant at the time of

borrowing money from the complainant (DW1 was examined by

the accused not for proving this plea).

Crl.R.P.No.600/2019 7

14. There is primarily the evidence of the complainant to

explain the circumstances under which she came into possession

of the cheque, admittedly drawn on a cheque leaf issued to the

accused by her bank to operate her account. No evidence was

adduced by the accused to prove her plea that she had given any

signed blank cheque to the complainant. There is nothing to

disbelieve the evidence of PW1 regarding the execution of Ext.P1

cheque for Rs.4,50,000/- and delivery of it by the accused to her.

On broad probabilities, there is no reason to doubt or suspect the

statement on oath of the complainant. Further, the accused does

not dispute the signature in Ext.P1 cheque. In such

circumstances, execution of Ext.P1 cheque for Rs. 4,50,000/- by

the accused and delivery of the same by her to the complainant

have been proved.

15. Once execution of the cheque by the accused is proved,

the presumption under Section 139 of the Act comes into play.

The burden is upon the accused to rebut the presumption. It is

obligatory on the court to raise the presumption under Section

139 of the Act in every case where the factual basis for raising Crl.R.P.No.600/2019 8

the presumption is established. It is a presumption of law as

distinguished from a presumption of fact. When the facts

required to form the basis of a presumption of law exist, no

discretion is left with the court but to draw the statutory

conclusion. But this does not preclude the person against whom

the presumption is drawn from rebutting it and proving the

contrary. In the case of a mandatory presumption, the burden

which rests on the accused person would not be as light as it is

where a presumption is raised under Section 114 of the Evidence

Act and cannot be held to be discharged merely by reason of the

fact that the explanation offered by the accused is reasonable

and probable. It must further be shown that the explanation is a

true one. The rebuttal does not have to be conclusively

established but such evidence must be adduced before the court

in support of the defence that the court must either believe the

defence to exist or consider its existence to be reasonably

probable (See Hiten P. Dalal v. Bratindranath Banerjee: AIR

2001 SC 3897).

Crl.R.P.No.600/2019 9

16. In the absence of any direct evidence adduced by her to

rebut the presumption under Section 139 of the Act, the accused

would advance the plea that the complainant had no financial

capacity to lend an amount of Rs.4,50,000/-.

17. During the cross-examination of PW1, it has been

brought out that she is a lady who has got no job or income and

that her husband is a coolie worker and that she resides in a tiled

house in three cents of land.

18. However, PW1 has explained how she had obtained the

money which was lent by her to the accused. She would say that

she had borrowed an amount of Rs.60,000/- from one Reena.

PW1 has also stated that her son is employed in Iraq and he had

sent money to her. She has also stated that she had obtained

money from her relatives to lend the same to the accused.

19. Reena, from whom the complainant had allegedly

borrowed Rs.60,000/-, was examined by the accused as DW1.

She (DW1) supported the version of the complainant and gave

evidence in examination-in-chief that she had lent Rs.30,000/-

each to the complainant on two occasions.

Crl.R.P.No.600/2019 10

20. Inspite of the fact that DW1 gave evidence in favour of

the complainant, she was not cross-examined by the accused

after seeking permission from the court. Therefore, the evidence

of DW1, though it would only partly support the case of the

complainant, is binding on the accused.

21. When a witness examined by a party states facts

against such party or in favour of the opposite party and when

the party who has examined that witness fails to cross-examine

the witness with the permission of the court and to treat him as

hostile, the evidence given by that witness would be binding

upon the party who has examined him. The opposite party can

rely upon such evidence (vide Jagan M. Seshadri v. State of

Tamil Nadu : AIR 2002 SC 2399, Raja Ram v. State of

Rajasthan: (2005) 5 SCC 272, Mukhtiar Ahmed Ansari v.

State (NCT of Delhi): AIR 2005 SC 2804, Javed Masood v.

State of Rajasthan: AIR 2010 SC 979, Assoo v. State of

Madhya Pradesh: (2011) 14 SCC 448 and Satyavir Singh v.

State : AIR 2011 SC 1748).

Crl.R.P.No.600/2019 11

22. While considering the financial capacity of the

complainant to lend the money, it is to be kept in mind that she

had not advanced the amount of Rs.4,50,000/- to the accused in

lump. In this context it is significant that the accused has

admitted that she had borrowed a total amount of Rs.2,90,000/-

from the complainant on different dates. In other words, the plea

of the accused is that the complainant had financial capacity to

lend Rs.2,90,000/- but she had not the capability to advance an

amount of Rs.4,50,000/-. The appellate court has dealt with this

plea in the following manner:

"Though there is nothing to prove the source of income of the complainant, other than the interested testimony of PW1, the case of the appellant itself is that, she had borrowed Rs.2,90,000/- from complainant and that in discharge of the said sum, she had paid back Rs.3,41,200/- to her. When the financial transaction for Rs.2,90,000/- is admitted by the appellant herself, it is futile to argue that complainant has no source of income".

In my view, the appellate court has properly considered the plea

raised by the accused regarding the capacity of the complainant Crl.R.P.No.600/2019 12

to lend the amount.

23. At this juncture, I shall refer to a few decisions of the

Apex Court on the issue.

24. In Rohitbhai Jivanlal Patel v. State of Gujarat : AIR

2019 SC 1876, the Supreme Court has observed as follows:

"The observations of the trial court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Section 118 and Section 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the Crl.R.P.No.600/2019 13

want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not".

(emphasis supplied)

25. In Basalingappa v. Mudibasappa : AIR 2019 SC

1983, the Apex Court observed as follows:

"During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts".

26. In APS Forex Service Private Limited v. Shakti

International Fashion Linkers : AIR 2020 SC 945, the Apex

Court has clarified and explained the issue as follows:

"Now so far as the reliance is placed by Learned Counsel appearing on behalf of the accused on the decision of this Court in the case of Basalingappa (supra), on going through the said decision, we are of the opinion that the said decision shall not be Crl.R.P.No.600/2019 14

applicable to the facts of the case on hand and/or the same shall not be of any assistance to the accused. In that case before this Court, the defence by the accused was that the cheque amount was given by the complainant to the accused by way of loan. When the proceedings were initiated under Section 138 of the N.I. Act the accused denied the debt liability and the accused raised the defence and questioned the financial capacity of the complainant. To that, the complainant failed to prove and establish his financial capacity. Therefore, this Court was satisfied that the accused had a probable defence and consequently in absence of complainant having failed to prove his financial capacity, this Court acquitted the accused. In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of Crl.R.P.No.600/2019 15

giving loan by cash and thereafter issuance of a cheque".

27. In my view, the crux of the decisions referred to above

is the following: The complainant has no obligation, in all cases

under Section 138 of the Act, to prove his financial capacity. But,

when the case of the complainant is that he lent money to the

accused by cash and that the accused issued the cheque in

discharge of the liability, and if the accused challenges the

financial capacity of the complainant to advance the money,

despite the presumption under Section 139 of the Act, the

complainant has the obligation to prove his financial capacity or

the source of the money allegedly lent by him to the accused.

The complainant has no initial burden to prove his financial

capacity or the source of the money. The obligation in that regard

would arise only when his capacity or capability to advance the

money is challenged by the accused.

28. In the present case, the accused had challenged the

financial capacity of the complainant to lend an amount of

Rs.4,50,000/-. The complainant gave evidence regarding the Crl.R.P.No.600/2019 16

source of the money lent by her to the accused and the courts

below have found that such evidence is reliable and acceptable.

Moreover, it is a case in which the accused admits that she had

borrowed an amount of Rs.2,90,000/- from the complainant. In

such circumstances, the plea of the accused that the complainant

had no financial capacity to advance the money, is only to be

rejected.

29. The revisional jurisdiction of this Court is of a restricted

nature in a case where the courts below have entered concurrent

findings. Even so, this Court has re-appreciated the evidence for

the purpose of satisfying itself that there is evidence in support

of the factual findings reached by the courts below. The courts

below have properly analysed and appreciated the evidence in

the case and reached the correct conclusion regarding the

issuance of the cheque by the accused to the complainant and

the inability of the accused to rebut the presumption under

Section 139 of the Act. I find no illegality, impropriety or

perversity in the appreciation of evidence and the findings

entered by the courts below.

Crl.R.P.No.600/2019 17

30. The revisional court is not meant to act as an appellate

court. Unless the finding of the court, whose decision is sought to

be revised, is shown to be perverse or untenable in law or is

grossly erroneous or glaringly unreasonable or where the

decision is based on no material or where the material facts are

wholly ignored or where the judicial discretion is exercised

arbitrarily or capriciously, the High Court shall not interfere with

such finding or decision in exercise of its revisional jurisdiction

(See Kishan Rao v. Shankargouda : AIR 2018 SC 3173).

31. In the aforesaid circumstances, conviction of the

petitioner/accused for the offence under Section 138 of the Act is

only to be confirmed.

32. Coming to the question of sentence, it is to be noted

that the appellate court has imposed only a sentence of

imprisonment till the rising of the court on the petitioner/accused

with a direction to pay Rs.4,50,000/- as compensation to the

complainant with default sentence of simple imprisonment for a

period of 45 days. The sentence imposed on the

petitioner/accused by the appellate court is proper and Crl.R.P.No.600/2019 18

reasonable.

33. Learned counsel for the petitioner has contended that

the courts below have imposed sentence of fine on the accused

without considering her capacity to pay the amount. This

contention does not even merit consideration. In the first place,

the courts below have not imposed any sentence of fine on the

petitioner/accused. The direction made by the courts below is to

pay amount to the complainant, which is equal to the amount of

the cheque, as compensation. In the second place, it is now

settled by various decisions of the Apex Court that a direction to

the accused to pay amount, which is equivalent to the amount of

the cheque or more, as compensation to the complainant is legal

and proper. The gravity of a complaint under the Negotiable

Instruments Act cannot be equated with an offence under the

provisions of the Indian Penal Code or other criminal offences. An

offence under Section 138 of the Act is almost in the nature of a

civil wrong which has been given criminal overtones (See

Kaushalya Devi Massand v. Roopkishore : AIR 2011 SC

2566). Again in Vijayan v. Baby : AIR 2012 SC 528, the Apex Crl.R.P.No.600/2019 19

Court has held that the Courts should, unless there are special

circumstances, in all cases of conviction, uniformly exercise the

power to levy fine upto twice the cheque amount (keeping in

view the cheque amount and the simple interest thereon at 9%

per annum as the reasonable quantum of loss) and direct

payment of such amount as compensation. The Apex Court has

also held that, direction to pay compensation by way of

restitution in regard to the loss on account of dishonour of the

cheque should be practical and realistic, which would mean not

only the payment of the cheque amount but interest thereon at a

reasonable rate. The decisions of the Apex Court in Mainuddin

Abdul Sattar v. Vijay D.Salvi : AIR 2015 SC 2579 and

Pukhraj v. Parasmal : (2015) 17 SCC 368 can also be

profitably referred to in this context.

34. Consequently, the revision petition is dismissed.

Conviction of the petitioner/accused for the offence under Section

138 of the Act is confirmed. The sentence imposed on the

petitioner/accused by the appellate court is also confirmed. Crl.R.P.No.600/2019 20

35. In view of the public health emergency prevailing in

the country now due to the pandemic Covid-19 and the

consequent financial problems being faced by persons like the

petitioner, I find it proper to grant her a period of six months

from today to pay the amount of compensation to the

complainant and to satisfy the trial court regarding the payment

of such amount. It is ordered accordingly.

(sd/-) R.NARAYANA PISHARADI, JUDGE jsr

True Copy

PS to Judge