Accused fails to rebut presumption under Section 139, conviction confirmed with modified sentence emphasizing compensation over punishment

FR. DR. SEBASTIAN KANJIRATHINKAL Versus N.P. HAMSA, STATE OF KERALA

FR. DR. SEBASTIAN KANJIRATHINKAL Versus N.P. HAMSA, STATE OF KERALA - TMI Issues involved:
The judgment involves the correctness and propriety of the judgments in Crl.Appeal No.898/2005 of the Court of the First Additional Sessions Judge, Thrissur, confirming the judgment passed in C.C No.144/2002 of the Court of the Judicial Magistrate of First Class, Chavakkad, regarding the offence under Sec.138 of the Negotiable Instruments Act.

Issue 1: Allegations and Defence
The complainant alleged that the accused borrowed a sum of Rs.6,00,000 and issued a cheque which got dishonoured. The accused denied the transaction and claimed he issued the cheque to someone else for a different purpose. The complainant argued the cheque was issued for a legally enforceable debt.

Issue 2: Presumption of Consideration
The N.I Act presumes consideration for negotiable instruments like cheques under Secs.118(a) and 139. The accused must rebut this presumption by proving the absence of a legally enforceable debt. The Supreme Court has clarified the concept of 'reverse onus' under Sec.139, emphasizing the accused's burden to raise a probable defence.

Issue 3: Analysis and Conclusion
The courts found the accused failed to shift the burden of proof under Sec.139. Despite the accused's denial and alternative explanation, evidence showed a business relationship between the parties. The accused's defence was deemed unconvincing, leading to his conviction under Sec.138. The High Court upheld the lower courts' decision, emphasizing the compensatory aspect of the remedy over punitive measures.

Separate Judgement:
The High Court modified the sentence due to the accused's age and health, reducing it to one day of imprisonment and ordering compensation payment. The Court highlighted the compensatory nature of Section 138 of the N.I. Act and prioritized the recovery of money over retribution. The execution of the sentence was deferred, and compliance was directed to the Trial Court.