If Transaction & Issuance Of Cheque Stands Admitted Rather Proved By Complainant, It Is Bounden Duty Of Accused To Rebut Presumptions: Kerala HC
|Finding that the complainant had filed the case under Section 138 of NI Act misusing the cheque issued as a security by writing the amount and date in that cheque, the Kerala High Court held that the complainant is not entitled to get any amount from the accused, and the accused are not liable to pay compensation or interest to the complainant.
A Single Judge Bench of Justice A. Badharudeen observed that “the evidence available would go to show that the 2nd accused herein admitted receipt of Rs.19,50,000/- and in order to discharge the said sum, two cheques were issued. One cheque issued bearing No.101616 for Rs.10,00,000/- was encashed and Ext.P1 cheque dated 03.04.2013 issued for Rs.9,50,000/- was dishonored. Thus, the transaction and issuance of the cheque, in fact is admitted rather proved by the complainant. In such a case, it is the bounden duty of the accused to rebut the presumptions. In fact, in the case at hand no evidence is available to see the rebuttal”.
Advocate C.S. Manu appeared for the Petitioner, whereas Advocate Maneesh Narayanan appeared for the Respondent.
The brief facts of the case were that in order to discharge liability to the complainant and her husband to the tune of Rs.9,50,000/-, the second accused issued cheque for Rs.9,50,000/- drawn on the account maintained by the first accused (Prana Educational and Charitable Trust) and the said cheque was dishonored for the reason “funds insufficient”. Accordingly, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (NI Act), since the accused failed to make the payment of the cheque amount on demand, within the statutory period. On appreciation of evidence, the Trial Court convicted and sentenced the accused.
After considering the submission, the Bench noted that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice.
The Bench thus observed that if there is non-consideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available.
The Bench further found that the accused raised contentions before the trial court by filing a statement under Section 313(5) of CrPC that the accused have not committed any offence, and that the accused have not issued cheque for Rs.9,50,000/- to the complainant.
The Bench also noted that the second accused was one of the Managing Trustees of Prana Educational and Charitable Trust which is a non-profitable charitable institution, and that trust is not conducting real estate business.
“Rameshan, husband of the 2nd accused, was having close friendship with the husband of the complainant, and during that time, the accused and her husband deposited amount in Prana Charitable Trust. Thereafter, cheque No.101019 dated 30/01/2013 was issued to the complainant and she encashed that cheque for Rs.10,00,000/-. Moreover, Rs.1,00,000/- paid on 11/01/2013 and Rs.2,00,000/- paid on 21/01/2013 to the complainant through her account No. xxxxxxxxx with the Syndicate Bank, Kozhikode branch. Moreover, the cheque No.101616 dated 31/09/2012 for Rs.10,00,000/- was given to the complainant. Even after receiving Rs.23,00,000/-, the husband of the complainant demanded more amount as interest. The complainant and husband are not entitled to get any interest”, added the Bench.
Therefore, the High Court concluded that the conviction imposed by the trial court and confirmed by the Appellate Court does not require any interference.
Cause Title: Prana Educational & Charitable Trust and Anr. v. State of Kerala and Anr. [Neutral Citation:
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