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2026 DAILYLAW 510 (KER)

Manisha v. Chandran Nair S/o Kunhiraman Nair

2026-06-01

Jobin Sebastian

body2026
ORDER : 1. Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner under Section 138 of the Negotiable Instruments Act (for short the "N.I. Act"). 2. The revision petitioner is the accused in S.T. No. 728/2006 on the file of the Judicial First Class Magistrate Court-II, Hosdurg. 3. The case of the complainant is that the accused borrowed a sum of Rs. 2,00,000/- from the complainant and, in discharge of the said liability, issued a cheque dated 03.03.2006 for the said amount in the complainant's favour. However, upon presentation, the cheque was dishonoured for the reason "funds insufficient." Thereafter, the complainant issued a statutory notice dated 24.03.2006 to the accused, informing him of the dishonour and demanding payment of the cheque amount. Despite receipt of the notice on 27.03.2006, the accused neither paid the amount nor sent a reply. Hence, t he accused is alleged to have committed an offence punishable under Section 138 of the N.I. Act. 4. During the trial, the complainant was examined as PW1 and marked Exts.P1 to P4. On the side of the defence, DW1 and DW2 were examined. On an appreciation of the evidence on record, the trial court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 , and convicted him. The accused was sentenced to undergo simple imprisonment for a period of six months and to pay an amount of Rs. 2,00,000/- to the complainant as compensation under section 357 (3) of Cr. P.C. In default of payment of the compensation, he was directed to undergo simple imprisonment for a further period of three months. 5. Aggrieved by the said judgment, the accused preferred Crl. A. No. 325 of 2008 before the Sessions Court, Kasaragod. The learned Sessions Judge, after hearing the appeal, partly allowed the same. While confirming the conviction, the appellate court modified the sentence by reducing the substantive sentence to simple imprisonment till the rising of the court. The direction to pay compensation and the default sentence were, however, confirmed. 6. Heard the learned counsel appearing for both sides and perused the records. 7. The learned counsel for the revision petitioner submitted that the present case is a foisted one and that no amount is due to the complainant as alleged. The direction to pay compensation and the default sentence were, however, confirmed. 6. Heard the learned counsel appearing for both sides and perused the records. 7. The learned counsel for the revision petitioner submitted that the present case is a foisted one and that no amount is due to the complainant as alleged. According to the learned counsel, both the trial court and the appellate court acted in a hasty manner in convicting the accused without properly appreciating the facts and evidence on record. It was further contended that the defence set up by the accused was not properly considered either by the trial court or the appellate court, resulting in the accused being wrongly convicted. Moreover, it was submitted that the evidence of the complainant regarding the alleged transaction and execution of Ext.P1 cheque is unreliable, and therefore, the trial court and the appellate court ought not to have placed reliance on such weak evidence to record a conviction against the accused. 8. Per contra, the learned counsel for the second respondent submitted that there is no ground to interfere with the concurrent findings of the trial court and the appellate court. According to the learned counsel, the complainant has successfully established the execution and issuance of Ext.P1 cheque. It was further submitted that once the execution of Ext.P1 cheque is proved, the statutory presumption under Section 139 of the Negotiable Instruments Act operates in favour of the complainant, and consequently, it is for the accused to rebut the said presumption by adducing cogent and convincing evidence. 9. Before delving into a detailed discussion regarding the scope of interference in the impugned judgment, it is worthwhile to note that the scope of interference in a revision petition is limited. By a series of judicial pronouncements, it is well settled that a court exercising revisional jurisdiction will interfere with the findings of the trial court or the appellate court only when such findings suffer from illegality, impropriety, or perversity. Unless it is shown that the judgment of the Trial Court or the Appellate Court is perverse, unreasonable, or suffers from non-consideration of relevant material or misreading of evidence, interference in revision is not warranted. The revisional court cannot reappreciate the evidence as an Appellate Court and substitute its own view merely because another view is possible. 10. Unless it is shown that the judgment of the Trial Court or the Appellate Court is perverse, unreasonable, or suffers from non-consideration of relevant material or misreading of evidence, interference in revision is not warranted. The revisional court cannot reappreciate the evidence as an Appellate Court and substitute its own view merely because another view is possible. 10. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, AIR 1999 SC 981 , the Hon'ble Supreme Court held thus: “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has 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 High Court which would otherwise tantamount to gross miscarriage of justice.” 11. Keeping in mind the above and reverting to the facts of the case, it can be seen that the allegation is that the accused had borrowed an amount of Rs. 2,00,000/- from the complainant and, towards discharge of the said liability, issued a cheque for the said amount. According to the complainant, when the said cheque was presented for encashment, it was returned with the endorsement “funds insufficient.” In order to prove the case of the complainant, the complainant himself was examined as PW1. PW1 filed an affidavit in lieu of chief examination, reiterating the contents of the complaint. Although PW1 was subjected to cross-examination, nothing was elicited to discredit his testimony. Moreover, the complainant gave a vivid account of the transaction which resulted in the execution of Ext.P1 cheque. The evidence of PW1 is sufficient to inspire the confidence of the Court and, therefore, the trial court was justified in drawing the statutory presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act. 12. Moreover, the complainant gave a vivid account of the transaction which resulted in the execution of Ext.P1 cheque. The evidence of PW1 is sufficient to inspire the confidence of the Court and, therefore, the trial court was justified in drawing the statutory presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act. 12. When the execution of a cheque is established, a legal presumption arises in favour of the complainant under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of a legally enforceable debt or liability. Once such a presumption arises, it is for the accused to rebut the same by adducing cogent and convincing evidence. 13. In the case at hand, as a presumption under Section 139 operates in favour of the de facto complainant, it is for the accused to rebut the presumption by adducing convincing material. I am not unmindful of the defence canvassed by the accused in this case. The accused has a case that she was an employee of a money-lending firm, of which the complainant was the proprietor. According to the accused, while working so, she had borrowed an amount of Rs.50,000/- from him. However, during that period, she developed a relationship with a man at Attingal, and subsequently, she eloped with him and later married. After the elopement, the complainant, who was anxious about t he money that he had given her, filed a complaint with the police, who then approached the accused at Attingal and threatened her to issue a blank signed cheque leaf in his favour. According to the accused, it was by misutilizing the said cheque leaf that the present case was fabricated against her. Although a defence as stated above was canvassed from the side of the accused, no materials whatsoever have been produced from her side to substantiate the said contention. 14. Now, by a series of judicial pronouncements, it is well settled that the mere putting of a suggestion will not b e tantamount to proof and is not a substitute for proof. In the said background, it is liable to be held that the accused miserably failed to rebut the presumption which is available in favour of the complainant under Section 139 of the N.I. Act. 15. In the said background, it is liable to be held that the accused miserably failed to rebut the presumption which is available in favour of the complainant under Section 139 of the N.I. Act. 15. Moreover, if the case of the accused was that due to the threat exerted by the police, she was compelled to issue the Ext.P1 cheque leaf, it is highly suspicious, as she has not taken any steps to approach the bank authorities and make a request to stop payment. Likewise, in the case at hand, the accused does not have a case that the statutory notice issued to her was not served on time. As evident from the records, even after receipt of the said notice demanding a huge amount, the accused remained silent without sending any reply or approaching the police authorities with a complaint. I am not oblivious to the law that non-sending of a reply will not amount to proof of execution or admission of liability. However, the non-sending of a reply even after receipt of a notice demanding a huge amount is an additional circumstance which favours the complainant to prove the transaction as well as the execution of the Ext.P1 cheque. I have already stated that the evidence of PW1 and the materials placed on record are sufficient to raise a presumption under Section 139 of the NI Act in favour of the complainant. However, the accused miserably failed to produce any material to displace the said presumption. 16. Likewise, no material has been placed before this Court to demonstrate that the appreciation of evidence or the concurrent findings of conviction and sentence by the trial court or the appellate court suffer from illegality, impropriety, or perversity. Upon a perusal of the records, this Court finds no reason to interfere with the judgments under challenge. The sentence imposed by the appellate court is also found to be appropriate and does not warrant interference. In the result, the revision petition stands dismissed. However, considering the submission made by the learned counsel for the revision petitioner, the revision petitioner is granted four months' time to pay the compensation amount before the trial court from the date of receipt of a copy of this order. In the result, the revision petition stands dismissed. However, considering the submission made by the learned counsel for the revision petitioner, the revision petitioner is granted four months' time to pay the compensation amount before the trial court from the date of receipt of a copy of this order. Needless to say, if the revision petitioner has deposited any amount before the trial court pursuant to any directions issued by the appellate court as well as this court, the said amount will be treated as part of the compensation amount to be paid by her. The compensation amount shall be released to the complainant.