T.H. Ahamad vs K.S. Ibrahim

A.S. Pachhapure, J.—The petitioner has challenged his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the N.I. Act" for short], confirmed in the appeal by the learned Sessions Judge.

The facts reveal that towards discharge of his liability, the petitioner issued a cheque dated 26.04.2011 for a sum of Rs. 1,00,000-00. When it was presented for encashment to the banker, was returned with an endorsement "insufficient funds". The respondent issued a legal notice. There was no reply. Therefore, a complaint came to be filed in the trial Court to initiate action against the petitioner for the offence punishable under Section 138 of the N.I. ACT.

During the trial, the respondent/complainant was examined as P.W. 1 and in his evidence, Exs. P1. to 6 were marked. The petitioner/accused was examined as D.W. 1 and in his evidence, Exs. D1 to 4 were marked.

The trial Court having heard counsel for the parties and on appreciation of the evidence, convicted the petitioner for the aforesaid offence under the impugned Judgment and Order, which came to be challenged in Crl.A. No. 30/2013 and the said appeal also came to be dismissed vide Judgment and Order dated 09.06.2014. Challenging the conviction and affirmation, the present revision petition has been filed.

I have heard learned counsel for the parties.

The point that arises for my consideration is;

Whether the petitioner has made out any grounds to warrant interference in his conviction and sentence for the offence punishable under Section 138 of the N.I. Act? 5. Learned counsel for the petitioner submits that the alleged debt is time barred and a complaint for the offence punishable under Section 138 of the N.I. Act is not maintainable. It is his submission that the demand promissory note produced at Ex. P6 is a concocted document and it was obtained by theft. Therefore, he submits that such a document cannot be relied upon for any purpose. Furthermore, he submits that though the demand promissory note is dated 03.09.2007, the cheque is said to have been issued on 26.04.2011 and that blank cheque was given to the complainant long back in respect of some other transaction. He furthermore, submits that in a revision petition before this Court it was admitted by the parties that a sum of Rs. 1,00,000-00 has been received in cash and therefore there is no necessity for the petitioner to execute the demand promissory note at Ex. P6. He submits that the evidence of the petitioner is sufficient to rebut the presumption that arises under Section 139 of the N.I. Act and in the absence of consistent and cogent evidence, the conviction cannot be sustained. On these grounds, he has sought for setting aside the impugned Judgment and Order.

On the other hand, learned counsel for the respondent supports the Judgment and Order of the Courts below and submits that the petitioner has not made out any grounds to interfere with the impugned Judgments and Orders.

The perusal of the records would reveal that Ex. P1 is the cheque and the signature on it is not in dispute. Therefore, a presumption could be raised under Sections 139 and 118 of the N.I. that issuance of the cheque is towards discharge of the liability. Apart from the document-Ex. P1, the respondent also relies upon the demand promissory note at Ex. P6 that has been executed by the petitioner in his favour and the contents of the demand promissory note clearly reveal that the petitioner had undertaken to pay a sum of Rs. 1,00,000-00 to the respondent in respect of the dues in C.C. No. 751/2003, which was on the file of the JMFC at Mangalore. Now, so far as this Ex. P6 is concerned, it is his contention that it was obtained by threat and that no transaction took place under the document-Ex. P6.

It is relevant to mention here that the amount payable by the petitioner is in respect of C.C. No. 751/2003 and as regards C.C. No. 751/2003 is concerned, the matter was in between the wife of the respondent and father-in-law of the petitioner. The Order in C.C. No. 751/2003 was challenged in Crl.R.P. No. 1654/2005 and this revision petition came to be disposed of on 06.09.2007 in view of the settlement between the parties and a sum of Rs. 1,00,000-00 is said to have been paid towards settlement. It is relevant to mention here that Ex. P6-demand promissory note is dated 03.09.2007, whereas the revision petition came to be disposed of on 06.09.2007 i.e., exactly 3 days after execution of the demand promissory note under which the petitioner had undertaken to pay a sum of Rs. 1,00,000-00 to the respondent. If really Ex. P6 was obtained by giving threat, such a submission could have been made either by the petitioner or by the parties while disposing of Crl.R.P. No. 1654/2005. No such submission was made and no complaint was filed in respect of Ex. P6 for obtaining it by giving a threat to the petitioner. Except the interested version of the petitioner before the trial Court, there is no other material placed on record to establish that the threat was given by the respondent in obtaining the demand promissory note-Ex. P6. This defence which has been put-forth by the petitioner is for the first time while defending himself in the trial Court. Therefore, taking into re-consideration the aforesaid circumstances, I am of the opinion that the demand promissory note was executed voluntarily by the petitioner on the said date and the petitioner has undertaken to pay a sum of Rs. 1,00,000-00 to the respondent under Ex. P6.

Reliance is placed on the decision of the Apex Court reported in Lalit Kumar Sharma and Another Vs. State of U.P. and Another, ; wherein at the time of settlement, a cheque was issued and it was held by the Apex Court that it is not towards discharge of the liability or the debt and the provisions of Section 138 of the N.I. Act are not applicable. This principle does not apply to the facts on hand for the reason that in the present case, settlement is said to have been made in Crl.R.P. No. 1654/2005 dated 06.09.2007 and a sum of Rs. 1,00,000-00 was payable. Though a submission was made that the amount was received, but it appears to be for the convenience of the parties and as a demand promissory note was executed undertaking the liability to pay a sum of Rs. 1,00,000-00 to the respondent, the revision was disposed of accepting the submissions made by the parties. The petitioner has undertaken to pay the said sum under the demand promissory note and has accepted the liability under the promissory note. In view of the aforesaid circumstances, the principles laid-down by the Apex Court does not apply to the facts on hand.

Further contention has been raised relating to some other transaction between the parties and their relatives and it is contended that the cheque-Ex. P1 was a blank cheque, which was obtained at the time of earlier transaction and that has been misused at the time and a false complaint has been filed by filling the blanks in the cheque. It is stated in the evidence of P.W. 1 that the date in the cheque was mentioned by the petitioner himself. It is not in dispute that the signature on the cheque is of the petitioner himself. So far as the name of the parties is concerned, it is stated that it is the respondent, who put his name. It is relevant to note that the provisions of the N.I. Act even permit issuance of a blank cheque and in the circumstances, the fact that mere change in the hand-writing so far as the contents of the cheque will not make much difference.

Furthermore, it is relevant to note that the respondent issued a notice to the petitioner at Ex. P3 and this notice was received and the acknowledgement was produced. The postal receipt and acknowledgement are produced as Exs. P4 and 5 respectively. Though it is admitted by the respondent that the notice was issued, the copy of the said notice has not been produced by the petitioner before the trial Court nor is admitted in the evidence. In such circumstances and in the absence of the reply or the defence in the said reply, the version put-forth by the petitioner for the first time before this Court cannot be accepted.

The petitioner was examined as D.W. 1 and he has stated in the evidence that the threat given and the demand promissory note was obtained. When the threat is not established by him or there is no material to accept his defence, I do not think that his evidence is sufficient to rebut the presumption that arises under Sections 139 and 118 of the N.I. Act.

That apart, this is a revision petition and the scope is limited. This Court cannot re-appreciate the evidence in this revision. Taking into consideration the aforesaid facts and circumstances, I am of the opinion that the revision petition has no merits and it is liable to be dismissed. Anyhow, the petitioner seeks reduction in the fine amount and prays time for payment. Considering the request, I am of the opinion that reasonable time has to be granted.

Consequently, the revision petition is allowed in part. The petitioner [accused] shall pay a sum of Rs. 1,22,000-00 towards fine amount. Out of the said sum, a sum of Rs. 1,20,000-00 shall be paid to the respondent and the remaining shall be credited to the State as fine. The petitioner is directed to pay the amount of Rs. 1,22,000-00 within 6 [six] months from today, in default to undergo simple imprisonment for 6 [six] months.