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Vijuna V.K. Vs. Mithun K. and Ors. - (High Court of Kerala) (09 Dec 2019)

Cheque drawn and issued by a person to the complainant, in discharge of debt owed by another person to complainant, comes within purview of Section 138 of NI Act

MANU/KE/5285/2019

Criminal

In facts of present case, the trial court found the Petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and convicted her thereunder and sentenced her to undergo simple imprisonment for a period of three months and also directed her to pay an amount of Rs. 3,50,000 as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months.

The appellate court confirmed the conviction of the Petitioner under Section 138 of the Act but modified the sentence of imprisonment to imprisonment till the rising of the court and imposed a fine of Rs. 3,50,000 on the Petitioner and in default of payment of fine, to undergo simple imprisonment for a period of three months. The Petitioner challenges the concurrent verdicts of guilty and conviction passed against her by the Courts below and the sentence imposed on her by the appellate Court.

The signature in the cheque is admitted by the accused. There is the evidence of PW 1 and PW 2 regarding the execution of the cheque by the accused and delivery of it by her to the complainant. In the absence of any reliable evidence adduced by the accused to prove that her signed blank cheque had been given to the father of the complainant as security for the amount borrowed by her husband, the evidence of PW 1 and PW 2 can be accepted as reliable and trustworthy. The trial court as well as the appellate Court has analysed the evidence in the case in the correct perspective and reached the correct conclusion.

It is true that, the accused had issued the cheque to the complainant not in discharge of any amount due from her to the complainant. What is proved is that, she had drawn and delivered the cheque to the complainant in discharge of the liability of her husband to the complainant. The fact, that the accused had drawn and delivered the cheque to the complainant in discharge of the amount due from her husband to the complainant and not in discharge of any amount due from herself, does not mean that the offence under Section 138 of the Act is not attracted. Cheque drawn and issued by a person to the complainant, in discharge of the debt owed by another person to the complainant, comes within the purview of Section 138 of the Act.

Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of the proviso to Section 138 of the Act stands complied with. Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act would be attracted.

There is no reason to interfere with the findings entered by the Courts below with regard to execution of the cheque by the accused and delivery of it by her to the complainant in discharge of the amount due from her husband to the complainant. The conviction of the Petitioner for the offence under Section 138 of the Act is only to be confirmed.

The appellate Court has shown maximum leniency in the matter of sentence and reduced the substantive sentence of imprisonment awarded by the trial court to imprisonment till the rising of the court. There is no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate Court. The revision petition is dismissed.

Tags : CONVICTION   SENTENCE   LEGALITY  

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