Kerala High Court
Bastin P C vs George on 5 June, 2025
Crl.R.P.No.540 of 2018 1 2025:KER:40401
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
CRL.REV.PET NO. 540 OF 2018
AGAINST THE JUDGMENT DATED 03.03.2018 IN CRL.A.NO.505
OF 2012 OF SESSIONS COURT, THRISSUR ARISING OUT OF THE
JUDGMENT DATED 09.08.2012 IN CC NO.5 OF 2007 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -III, THRISSUR
REVISION PETITIONER/APPELLANT/ACCUSED:
BASTIN P C, AGED 49, S/O.CHERU,
THARAYIL HOUSE,NO.75, N.G.R. ROAD,
PALLADM, TIRUPUR, THAMIL NADU.
BY ADV SRI.K.R.ARUN KRISHNAN
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 GEORGE
AGED 72, KOCHAPPU, THEKKUMPURAM HOUSE P.O.,
PUTHUR, THRISSUR-680 001.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 011
BY ADVS.
SHRI.E.M.ABDUL KHADER
SMT.AMRIN FATHIMA
SRI.BABU KARUKAPADATH
SRI.K.M.FAISAL (KALAMASSERY)
SRI.MITHUN BABY JOHN
SRI.RAHUL ROY
SMT.M.A.VAHEEDA BABU
SHRI.P.U.VINOD KUMAR
SMT.MAYA M N-PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 29.5.2025, THE COURT ON 05.06.2025 DELIVERED THE
FOLLOWING:
Crl.R.P.No.540 of 2018 2 2025:KER:40401
CR
M.B.SNEHALATHA, J.
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Crl.R.P.No.540 of 2018
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Dated this the 5th June, 2025
ORDER
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 ₹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
Crl.R.P.No.540 of 2018 3 2025:KER:40401
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 ₹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 ₹15 lakhs and issued Ext.P1 cheque in discharge of the said
debt. The learned counsel further contended that since the
Crl.R.P.No.540 of 2018 4 2025:KER:40401
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 ₹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
Crl.R.P.No.540 of 2018 5 2025:KER:40401
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 ₹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 ₹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
Crl.R.P.No.540 of 2018 6 2025:KER:40401
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
Crl.R.P.No.540 of 2018 7 2025:KER:40401
debt or other liability.
16. In Rengappa v. Sri.Mohan reported in 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 ₹15 lakhs due to the
Crl.R.P.No.540 of 2018 8 2025:KER:40401
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 ₹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
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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. 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
Crl.R.P.No.540 of 2018 10 2025:KER:40401
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.
Crl.R.P.No.540 of 2018 11 2025:KER:40401
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.
Registry shall transmit the records to the trial court forthwith.
Sd/-
M.B.SNEHALATHA
JUDGE
ab