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TMI Blog2023 (10) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel appearing for the 2nd respondent/ complainant. 4. The case put up by the complainant before the trial court was that in order to discharge liability to the complainant and her husband to the tune of Rs. 9,50,000/-, the 2nd accused issued cheque for Rs. 9,50,000/- dated 03.04.2013 drawn on the account maintained by the 1st accused (Prana Educational and Charitable Trust) and the said cheque was dishonored for the reason "funds insufficient". Accordingly, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I. Act for convenience), since the accused failed to make the payment of the cheque amount on demand, within the statutory period. 5. Initially, the complaint was filed before the Judicial First Class Magistrate Court No. III, Kozhikode and the learned Magistrate took cognizance of the offence and numbered the case as C.C. No. 499/2014. While so, in view of the decision of the Apex Court reported in [2014 (3) KLT 605] Dasharath Roopsingh Rathod v. State of Maharashtra and another, the complaint was represented before the Judicial First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stee is not legally sustainable, since Trust is not a juristic person as defined under Section 141 of the N.I. Act. In support of this contention, the learned counsel for the accused/revision petitioners placed decision of this Court reported in K.P. Shibu and others v. State of Kerala and another [2019 (3) KHC 1]. In the said decision, this Court held that, no prosecution against Trust alleging commission of offence punishable under Section 138 of the N.I. Act is maintainable. Since, Trust is not a body corporate or an association of individuals as provided in the explanation to Section 141 of the N.I. Act. 10. In view of this contentions the questions arise for consideration are: 1. Can a Trust (an Artificial Person) be prosecuted alleging commission of offence punishable under Section 138 of the N.I. Act? 2. Whether private or public charitable Trust to be recognized as a juristic person for the purpose of the N.I. Act? 3. Whether Trust, either private or public, is a company in terms of Section 141 of the N.I. Act? 11. The learned counsel for the complainant/2nd respondent zealously opposed the contention by the learned counsel for the accused relying on the ratio in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the General Clauses Act, Section 11 of IPC and Section 26 of the N.I. Act and also the definition of the terms drawer, acceptor, acceptor for honour etc. as defined under Section 7 of the N.I. Act, the learned Single Judge held that the drawer of a cheque is the one who makes a cheque and under Section 138 of the N.I. Act if a drawer fails to pay the cheque amount as demanded under a notice, is liable for punishment. Therefore, it is undoubtedly clear that a public charitable Trust, being a drawer is liable for punishment under the N.I. Act. 15. Another question considered by the Madras High Court was as to whether Trust, either private or public, is a company in terms of Section 141 of the N.I. Act? After elaborately discussing the definition of Section 141 of the N.I. Act with reference to decision of the Apex Court reported in [2008 (5) SCC 449] Ramanlal Bhailal Patel v. State of Gujarat, the learned Single Judge answered the queries holding that (i) A Trust, either private or public/charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable under Section 138 of the Negotiable Instruments Act. (ii) A Trust, either private or publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness must be deemed as a juristic person like a company or firm." 19. In this matter, the specific case of the complainant before the trial court was that on receipt of money as loan from the complainant for and on behalf of the Trust, a cheque of the 1st accused (Trust) was signed and issued by the 2nd accused to discharge the liability of the Trust and accordingly on dishonour of the cheque prosecution was launched. 20. Analyzing the decision rendered by the Madras High Court, it could be gathered that after elaborately considering the relevant statutory provisions, the learned Single Judge held as above. The High Courts of Bombay and Gujarat interpreted the explanation appended to Section 141 of the N.I. Act with reference to "inclusive of any body corporate" or "other association of individuals" and construed the above terms by applying the principle of ejusdem generis and held that the term "association of individuals" will include club, trust, Hindu Undivided Family Business. 21. Coming to K.P. Shibu and Others's case (supra), it is discernible that the said decision is not so elaborative and the interpretation of the term "association of individuals" not done by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled. 23. Apart from the said contention, some other decisions prior to and one decision after Rangappa v. Sri.Mohan [2010 (2) KLT 682 (SC)] of the Apex Court have been placed to unsettle the concurrent verdicts of conviction and sentence. Insofar as the presumptions under Sections 118 and 139 of the N.I. Act are concerned, the law is well settled. In Rangappa's case (supra), the Apex Court considered the presumption available to a complainant in a prosecution punishable under Section 138 of the N.I Act and held as under: "The presumption mandated by S. 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [2008 (1) KLT 425 (SC)] may not be correct. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S. 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." 25. In a latest 3 Bench decision of the Apex Court reported in [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], M/s.Kalamani Tex & anr. v. P.Balasubramanian the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I Act it was held as under: "Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S. 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these `reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Once the 2nd Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..." 28. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s viz. State of Kerala v. Puttamana Illath Jathavedan Namboodiri [1999 (1) KLT 735], C.T. Joseph v. I.V. Philip [AIR 2001 Ker. 300], Santhi v. Mary Sherly [2011 (3) KT 273], ANSS Rajashekar v. Augustus Jeba Ananth [AIR 2019 SC 942], S.Devan v. C. Krishnan Menon and another [2010 (2) KLT 397], Velayudhan v. Velayudhan [2001 (1) KLT 392] Narbada Devi Gupta v. Birendra Kumar Jaiswal [AIR 2004 SC 175], Krishna Janardhan Bhat v. Dattatraya Hedge [2008 (1) KLT 425 (SC)], State of Punjab v. Jagir Sigh, Baljit Singh and Karam Singh [1975 (3) SCC 277], Dilip and another v. State of M.P. [AIR 2007 SC 369] cannot sustain. 31. On scrutiny of the case put up by the accused before the trial court and the Appellate Court, it appears that the accused raised contentions before the trial court by filing a statement under Section 313(5) of Cr.P.C. that the accused have not committed any offence. The accused have not issued cheque for Rs. 9,50,000/- to the complainant. The 2nd accused was one of the Managing Trustees of Prana Educational and Charitable Trust which is a non profitable charitable institution. That trust is not conducting real estate business. Rameshan, husband of the 2nd accused, was h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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