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TMI Blog2021 (1) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2 alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). Parties are hereinafter referred to as 'the complainant' and 'the accused' according to their status in the trial court unless it is otherwise stated. 3. The case of the complainant, in brief, is as hereunder:- The complainant, M/s Shipping Corporation of India, is represented by its local agent, M/s Jairam & Sons. The 1st accused, who is an exporting firm, and the 2nd accused, who is its partner, had approached the complainant through its local agent and requested them to ship their cargo from Kochi to Hamburg. All the details of shipments were discussed in detail including the payment of freight charges etc. Accordingly, the accused shipped 400 bags of black pepper through the complainant as per vessel "ACACIA-VOY.399" from Kochi to Hamburg. Towards the freight amount, the accused issued cheque No.509028 dated 26.05.1999 for Rs. 79,160/- drawn on the Karur Vysya Bank, Ernakulam Branch, Cochin-16. When the complainant presented the above cheque for collection through their banker, State Bank of India, Will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant and the so called representative. It was further contended that legal notice was not issued within time. 8. The learned counsel appearing on behalf of the 1st respondent, on the other hand, would submit that the accused issued the cheque in favour of the complainant pursuant to a transaction between them and the cheque, on presentation, was dishonoured for the reason 'Exceed Arrangement'. It is contended that the privity of contract is between the complainant and the accused and the technical contention under Section 230 of the Contract Act is taken to avoid payment due to the complainant. 9. In order to determine the question whether an offence punishable under Section 138 of the NI Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the NI Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the NI Act. Section 118 of the NI Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm, M/s Jairam & Sons. 11.During the trial, the accused entered appearance before the court and denied the accusation levelled against him. Another case of the same nature between the same parties was pending before the very same court as CC No. 593 of 1999. Hence, joint trial was ordered and the evidence was taken in CC No. 592 of 1999. Against the judgment dated 05.10.2005, the accused preferred this Crl.R.P. It is seen from the records that the accused in CC No. 593 of 1999 preferred Crl. Appeal No. 846 of 2005 before the Sessions Court and the same was dismissed. However, no revision is seen filed challenging the judgment in Crl. Appeal No. 846 of 2005. Hence, it appears from the facts and circumstances that the judgment in Crl. Appeal No. 846 of 2005 has become final between the parties on identical matters. 12.The learned counsel for the revision petitioners/accused contended that the complainant is only an agent for the principal and an agent cannot personally enforce a contract under Section 230 of the Contract Act. It is contended that the transaction covered is not enforceable through court by the complainant. 13.The complainant, M/s Shipping Corporation of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice." 15.For creating criminal liabilities in terms of Section 138 of the NI Act, the complainant is obliged to show that a cheque was issued; the same was presented; but, it was dishonoured; a notice in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the amounts due on account of the shipping were made through M/s Shipping Corporation of India, for whom M/s Jairam & Sons stood as an agent. The accused had not offered any explanation as to why they had issued Ext.P5 cheque to M/s Shipping Corporation of India. 17.The conclusions drawn by the trial court and the appellate court to convict the accused 1 and 2 are perfectly legal. The cheque in question was drawn for consideration and the holder of the cheque received the same in discharge of an existing debt. Thereafter, the onus shifts on the accused to establish a probable defence so as to rebut such presumption, which onus has not been discharged by the accused. Once the cheque is proved to be issued, it carries statutory presumption of consideration under Sections 118 and 139 of the NI Act. Then, the onus is on the accused to disprove the presumption at which they have not succeeded. 18.It is well settled law that when concurrent findings of facts rendered by the trial court and appellate court are sought to be aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused for the offence under Section 138 of the NI Act is only to be upheld. 20.Coming to the question of sentence, the trial court convicted and sentenced the 1st accused to pay a fine of Rs. 5,000/- each and 2 nd accused to undergo simple imprisonment for three months each in CC Nos. 592 and 593 of 1999 on the file of the Judicial First Class Magistrae Court-I, Ernakulam. Further, it was ordered to pay a sum of Rs. 1,19,000/- in CC of 1999 to the complainant under Section 357(3) of Cr.P.C. and default of payment of fine to undergo simple imprisonment for three months each more. The amount involved in CC No. 592 of 1999 is Rs. 79,160/- as per cheque bearing No. 509028 dated 26.05.1999. This revision is confined to an amount of Rs. 79,160/- only. So far as CC No. 593 of 1999 is concerned, the accused preferred Crl. Appeal No. 846 of 2005 before the Sessions Court, Ernakulam. Crl. Appeal 845 of 2005 arising out of CC No. 592 of 1999 and Crl. of 1999 were heard together by the learned Sessions Judge and pronounced a common judgment on 14.02.2006. The accused challenged the judgment in Crl. Appeal 845 of 2005 before this Court. Regarding the other case, no submission was adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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