Dishonour of Cheque; K.K. Divakaran Vs. State [Kerala High Court, 09-09-2016]

Negotiable Instruments Act, 1881 – Section 138 – Dishonor of Cheque – Notice – Neither the nature, nor the date of the transaction between the parties nor the date of issuance of the cheque was disclosed – Suppression of these material facts in the statutory notice and in the subsequent complaint is fatal.

Negotiable Instruments Act, 1881 – Section 138 – Suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear. They want to develop a story after knowing the defence that may be set up by the opposite party. The doors of the court should be closed to such fortune seekers.

Negotiable Instruments Act, 1881 – Section 142 – In a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.

Cheque

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.ABRAHAM MATHEW, J.

Crl.R.P.No.1689 OF 2009

Dated this the 9 th day of September, 2016

AGAINST THE JUDGMENT IN CRA 627/2005 OF THE SESSIONS COURT, KOTTAYAM AGAINST THE ORDER IN C.C.NO.282 OF 1999 OF JUDICIAL FIRST CALSS MAGISTRATE COURT-1, KOTTAYAM

REVISION PETITIONER/APPELLENT/ACCUSED

K.K.DIVAKARAN, PALA.

BY ADVS.SRI.P.BABU KUMAR SRI.P.YADHU KUMAR

RESPONDENTS/COMPLAINANTS/COMPLAINANTS

1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. LALITHA RAVI, SULATHALAYAM, MEENADAM.P.O.,PAMPADY,KOTTAYAM DIST. R, BY ADV. PUBLIC PROSECUTOR SMT.MANJU.V R,R2 BY ADV. SRI.LIJI.J.VADAKEDOM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

At the trial that took place on a complaint filed by the mother in-law of his son under

Section 142 of the Negotiable Instruments Act

(hereinafter called the Act) the revision petitioner was convicted of the offence under Section 138 of the Act and sentenced to undergo simple imprisonment for six months. He was also directed to pay the second respondent/complainant Rs.2,55,000/- as compensation and in default of payment of the amount to undergo simple imprisonment for a further period of two months. In the appeal filed by him the order of conviction was upheld, but the sentence was modified; he was ordered to undergo imprisonment till the rising of the court. The direction to pay the compensation and to undergo imprisonment in case the amount was not paid was not modified. The order of conviction and the sentence are assailed on the ground that both courts failed to analyse the evidence, and to apply the law laid down by the Supreme Court as to how the presumptions under Sections 118(a) and 139 of the Act may be rebutted. It is submitted that both courts failed to examine whether the evidence available in the case was sufficient to prove the contention of the revision petitioner that the cheque in question was a signed blank cheque leaf given to the husband of the second respondent as a security for the loan of Rs.50,000/- taken by Pradeep, son of the former and son in law of the second respondent.

2. A perusal of the judgments of the courts below reveals that there is much substance in the submission of the learned counsel for the revision petitioner. The trial court in its judgment gave a summary of the evidence of each witness, which is not expected to be given in a judgment. The court should consider each relevant fact and discuss and analyse only the evidence given by the witnesses who have deposed to it. If the summary of the testimony of the witnesses is discarded, nothing much remains in the judgment of the trial court. The second respondent relied on Ext P8 which is said to be a document executed by the revision petitioner acknowledging his liability, admitting issuance of the cheque and undertaking to pay the amount. The contention of the latter is that Ext P8 was a signed blank paper he gave the husband of the second respondent along with the signed blank cheque. The trial court in its judgment has observed:

“Moreover as per Ext P8 agreement the accused admitted his liability to the complainant.”

The learned Magistrate did not examine the contention of the revision petitioner. He further observed:

“There is no evidence adduced by the accused to rebut the presumption under Section 139 of the NI Act. There is no reason to reject the testimony of PWs 1 to 3”.

It has become a practice of some courts not to even consider whether the accused has been able to rebut the presumptions under Sections 118 and 139 of the NI Act. This case is a classic example of it. The judgment of the appellate court is not better than that of the trial court. There is no discussion or analysis of the evidence. It held:

“Therefore, it is the duty of the appellant to prove that he has issued Ext P1 cheque not in discharge of a debt or liability. A close scrutiny of the evidence of the first respondent shows that the defence story put forward by the appellant is only to be discarded.”

The learned Sessions Judge reached this conclusion without examining whether the materials available in the case are sufficient to rebut the presumption. I have no doubt that the failure of the courts below to discharge their duties properly have resulted in miscarriage of justice. This makes it necessary for this court to discuss and analyse the evidence adduced by either side with regard to the execution of Ext P1 cheque as well as the evidence regarding the contention of the revision petitioner that is not supported by consideration and that it was a signed blank cheque leaf given to the husband of the second respondent.

3. The allegation in the complaint is that to discharge a debt the revision petitioner on 14.9.1998 issued at Pampadi Ext P1 cheque bearing the date 11.1.1999 and when it was presented the bank returned it as there was no sufficient funds in his account and in spite of demand by notice, he failed to pay the amount and thus he committed the offence under Section 138 of the Act.

4. The effect of admission of signing a blank paper by a party to a proceedings came up for consideration in