2010 (4) TMI 1223 - HC - Indian Laws

Court modifies sentences to focus on compensation, upholds convictions under Section 138

S. Devan Versus C. Krishna Menon and Ors.

The court upheld the convictions under Section 138 of the Negotiable Instruments Act but modified the sentences to focus on monetary compensation rather ... - Issues Involved:1. Validity of a cheque when the drawer disputes its execution and signature.2. Impact of a banker's endorsement on cheque dishonour due to signature differences.3. Role of the banker as the final arbiter in cheque dishonour cases under Section 138 of the Negotiable Instruments Act.4. Jurisdiction of the court to ascertain the real reason for cheque dishonour.5. Need for reconsideration of the decision in Thomas Varghese v. P. Jerome.6. Conflict between the decisions in Rejikumar v. Sukumaran and M.I. Kumaran v. Abdul Karim and Anr.7. Grounds for challenging the concurrent verdict of guilty, conviction, and sentence.Detailed Analysis:Issue 1: Validity of a Cheque with Disputed Execution and SignatureThe court held that a cheque does not cease to be a cheque merely because the drawer disputes its execution and the genuineness of the signature. The burden of proof lies on the complainant to establish the execution of the cheque, which can be supported by oral and documentary evidence. In this case, the oral evidence of PWs.1 and 2, along with the admitted financial transactions between the parties, supported the complainant's claim.Issue 2: Impact of Banker's Endorsement on Cheque DishonourThe court determined that the endorsement made by a banker while dishonouring a cheque is not decisive. The real reason for dishonour must be ascertained by the court. The court noted that the banker might include reasons like 'signature differs' to protect a valued customer, but the actual cause of dishonour, such as insufficiency of funds, must be considered.Issue 3: Role of Banker as Final Arbiter in Cheque Dishonour CasesThe court emphasized that the banker is not the final arbiter in cheque dishonour cases under Section 138 of the Negotiable Instruments Act. The court retains jurisdictional competence to ascertain the real reason for dishonour, irrespective of the banker's endorsement.Issue 4: Jurisdiction of the Court to Ascertain Real Reason for DishonourThe court reaffirmed its jurisdictional competence to determine the real reason for cheque dishonour, notwithstanding the reasons stated by the banker. The court must evaluate all evidence, including the banker's endorsement, to arrive at the actual cause of dishonour.Issue 5: Reconsideration of Thomas Varghese v. P. JeromeThe court found no need to reconsider the decision in Thomas Varghese v. P. Jerome. The principles established in that case, which allow the court to ascertain the real reason for dishonour, were upheld.Issue 6: Conflict Between Rejikumar v. Sukumaran and M.I. Kumaran v. Abdul Karim and Anr.The court clarified that there is no conflict between the decisions in Rejikumar v. Sukumaran and M.I. Kumaran v. Abdul Karim and Anr. Both decisions align with the principle that the court must ascertain the real reason for dishonour, irrespective of the banker's endorsement.Issue 7: Grounds for Challenging the Concurrent Verdict of Guilty, Conviction, and Sentence1. Finding of Fact: The court upheld the finding that the cheques were written, signed, and handed over by the accused to the complainant. The evidence presented, including the complainant's ability to produce the cheques and the financial transactions between the parties, supported this conclusion.2. Comparison of Signatures: The court found no error in the lower courts' comparison of signatures under Section 73 of the Evidence Act. The comparison was used to support the oral evidence, not as the sole basis for the finding.3. Legally Enforceable Debt: The court agreed with the lower courts that the cheques were issued for the due discharge of a legally enforceable debt/liability. The presumption under Section 139 of the Negotiable Instruments Act was not rebutted by the accused.4. Endorsement by Banker: The court rejected the argument that the dishonour due to 'signature differs' precludes prosecution under Section 138. The court must determine the real reason for dishonour.5. Section 420 IPC Allegations: The court dismissed the contention that allegations under Section 420 IPC preclude prosecution under Section 138. The complainant's allegations of fraud did not affect the maintainability of the prosecution.6. Limitation Period: The court disagreed with the argument that the prosecution is barred by limitation due to the initial dishonour. Successive presentations within the permissible period are allowed, and the cause of action arises only upon issuance of a notice of demand.7. Excessive Sentence: The court modified the sentence, setting aside the substantive imprisonment and enhancing the fine to ensure fair compensation to the complainant. The revised sentence was deemed appropriate given the prolonged legal battle and the complainant's right to justice.Conclusion:The court upheld the convictions under Section 138 of the Negotiable Instruments Act but modified the sentences to focus on monetary compensation rather than imprisonment. The judgment reinforced the court's role in determining the real reason for cheque dishonour and emphasized the importance of fair compensation in such cases.