2020 (8) TMI 684 - HC - Indian Laws

Accused convicted under Section 138 for dishonored cheque; appeal dismissed, conviction upheld.

NEELAKANTAN S/O SANKARAN Versus STATE OF KERALA, M.A. SAJAD

The accused was convicted and sentenced under Section 138 of the Negotiable Instruments Act for issuing a dishonored cheque. The appellate court dismissed ... Dishonor of Cheque - insufficiency of funds - legally enforceable debt - rebuttal of presumption - Both the trial court as well as the appellate court held that the proof of hire purchase agreement is not sufficient to rebut the presumption under Section 138 of the N.I.Act - HELD THAT:- A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118A and Section 139 of the N.I.Act. Once the complainant has succeeded in proving that the accused executed the cheque, then the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the N.I.Act. In this case, the accused has failed to raise a probable defence which creates doubt with regard to the existence of a debt or liability. In the light of the evidence adduced, this Court is perfectly in agreement with the findings of the trial court as well as the appellate court that the presumption mandated by Section 138 of the N.I.Act has not been rebutted, in accordance with law. Revision Petition is dismissed confirming the concurrent conviction and sentence imposed against the revision petitioner by the trial court as well as the appellate court. During the pendency of the proceeding, this Court called for a report from the Sub Inspector of Police, Vithura Police Station to ensure the presence of the revision petitioner before this court - The accused is sentenced to pay a fine of ₹ 2,50,000/- and in default to pay the fine amount, the accused shall undergo sentence of simple imprisonment for a period of three months. The fine amount if realised, the same shall be released to the complainant under Section 357(1) of Cr.P.C. - Criminal Revision Petition is allowed in part. Issues:1. Conviction and sentence under Section 138 of the Negotiable Instruments Act.2. Proof of hire purchase agreement to rebut the presumption under Section 138 of the N.I. Act.3. Presumption of consideration under Section 118A and Section 139 of the N.I. Act.4. Failure to raise a probable defense creating doubt regarding the existence of a debt or liability.5. Modification of sentence due to the age and health condition of the accused.Analysis:1. The revision petitioner/accused was convicted and sentenced under Section 138 of the Negotiable Instruments Act. The petitioner appealed the decision, but the appeal was dismissed, upholding the conviction and sentence imposed by the trial court. The case revolved around the issuance of a cheque by the accused, which was dishonored due to insufficient funds, leading to the complaint being filed by the complainant.2. During the trial, the complainant presented evidence showing that the accused borrowed a sum of money and issued a cheque, which was dishonored. The defense argued that the cheque was related to a hire purchase agreement for a vehicle, and the complainant was a proxy for the financing company. However, both the trial court and the appellate court found the proof of the hire purchase agreement insufficient to rebut the presumption under Section 138 of the N.I. Act.3. The court highlighted that a negotiable instrument, such as a cheque, carries a presumption of consideration under Section 118A and Section 139 of the N.I. Act. Once the complainant proves the issuance of the cheque, the burden shifts to the accused to prove that the cheque was not issued for discharging any debt or liability. In this case, the accused failed to provide a probable defense casting doubt on the existence of a debt or liability, leading to the confirmation of the conviction and sentence.4. Considering the age and health condition of the accused, who was bedridden and without any property, the court modified the sentence. The accused was sentenced to pay a fine, and in default, undergo simple imprisonment. The court ordered the fine amount to be released to the complainant under Section 357(1) of Cr.P.C. Additionally, any amount deposited by the accused during the proceedings was to be released to the complainant in accordance with the law.5. The court emphasized that the age and health condition of the accused, along with the lack of property, were not sufficient grounds for acquitting the accused. Despite the personal circumstances of the accused, the court upheld the conviction and modified the sentence based on the established legal principles and evidence presented during the trial.