Kerala High Court
Prakash.M vs Gangadharan on 20 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
CRL.REV.PET NO. 181 OF 2018
AGAINST THE JUDGMENT IN CRL.A.NO.43/2014 OF ADDITIONAL SESSIONS
COURT-III, KOZHIKODE
CC.NO.66/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, VADAKARA
PETITIONER/APPELLANT/ACCUSED:
PRAKASH.M,
AGED 47 YEARS, S/O.RAMACHANDRAN NAMBIAR,
MANAPPALLY HOUSE, P.O.IRINGAL,
NEAR CRAFT VILLAGE,KOILANDY, KOZHIKODE DISTRICT.
BY ADV SRI.K.I.SAGEER IBRAHIM
RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:
1 GANGADHARAN
AGED 60 YEARS, S/O.KANNAN,
KANDOTH THAZHA VAYALIL HOUSE,P.O.PUTHUPPANAM,
VADAKARA,KOZHIKODE
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM,PIN - 682 031.
R1 BY ADV. SRI.T.G.RAJENDRAN
R2 BY PUBLIC PROSECUTOR SRI.G.SUDHEER
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 181 OF 2018 2
ORDER
This revision has been filed under Sections 397 and 401 of the Code of
Criminal Procedure (for short 'the Cr.P.C' hereinafter), challenging judgment in
C.C.No.66/2013, dated 3.12.2013 on the file of the Judicial First Class Magistrate
Court - II, Vadakara and also the judgment in Crl.Appeal No.43/2014 on the file of
the Additional Sessions Court - III, Kozhikode.
2. The revision petitioner is the accused in the above case.
3. The respondents herein are the original complainant as well as the
State of Kerala.
4. Heard the learned counsel for the revision petitioner and the learned
Public Prosecutor. Notice to the first respondent stands dispensed with.
5. I shall refer the parties as 'complainant' and 'accused', for
convenience.
6. Bereft of unnecessary details, the case put up by the complainant
before the trial court is as under:
The complainant launched prosecution alleging commission of offence under
Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter),
when cheque for Rs.2,00,000/- (Rupees Two Lakh only) dated 5.3.2012, allegedly
issued by the accused to the complainant was dishonoured when the same was
presented for collection, for want of funds.
7. The court below secured the presence of the accused for trial and
during trial, PW1 was examined and Exts.P1 to P5 were marked on the side of the
complainant. On completion of the prosecution evidence, the accused was
questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to
him, to adduce defence evidence, but no defence evidence was adduced.
8. The trial court appreciated the evidence and found that the accused
committed offence punishable under Section 138 of the NI Act and he was
sentenced to undergo simple imprisonment till rising of the court and to pay a fine
of Rs.2,30,000/- (Rupees Two Lakh Thirty Thousand only) and the fine was
ordered to be given as compensation to the complainant. Default imprisonment for
a period of two months also was imposed. The accused challenged the order of
trial court before the III Additional Sessions Judge, Kozhikode in Crl.Appeal
No.43/2014. As per judgment, dated 29.11.2014, the learned Additional Sessions
Judge also confirmed the finding of the trial court and dismissed the appeal.
9. In fact, nothing argued on merits by the learned counsel for the
revision petitioner to unsustain the concurrent verdicts. However, he reiterated the
contentions raised before the trial court that there was no transaction between the
complainant and the accused. Ext.P1 cheque originally issued in the name of one
Sri.Ottakkulathil Kanaran, was misused for the purpose of this case.
10. Going by the grounds raised in the revision petition, in fact, those are
matters to be decided on appreciation of evidence and the said power is not
available to this Court while exercising revision.
11. It is the settled law that power of revision available to this Court under
Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate
the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC
452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan
Namboodiri, the Apex Court, while considering the scope of the revisional
jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55,
para 5):
"5. ...... 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. 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. ..."
12. 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 perverse or wholly
unreasonable or there is non-consideration of any relevant material, the order
cannot be set aside merely on the ground that another view is possible. Following
has been laid down in para.14 (SCC p.135) :
"14. ...... Unless the order passed by the Magistrate is perverse or the
view taken by the court is wholly unreasonable or there is non-consideration of
any relevant material or there is palpable misreading of records, the Revisional
Court is not justified in setting aside the order, merely because another view is
possible. The Revisional Court is not meant to act as an appellate court. The
whole purpose of the revisional jurisdiction is to preserve the power in the court to
do justice in accordance with the principles of criminal jurisprudence. The
revisional power of the court under Sections 397 to 401 Cr.P.C is not to be
equated with that of an appeal. Unless the finding of the court, whose decision is
sought to be revised, is shown to be perverse or untenable in law or is grossly
erroneous or glaring unreasonable or where the decision is based on no material
or where the material facts are wholly ignored or where the judicial discretion is
exercised arbitrarily or capriciously, the courts may not interfere with decision in
exercise of their revisional jurisdiction."
13. The said ratio has been followed in a latest decision of the Supreme
Court reported in [(2018) 8 SCC 165], Kishan Rao v. Shankargouda. Thus the
law is clear on the point that the whole purpose of the revisional jurisdiction is to
preserve power in the court to do justice in accordance with the principles of
criminal jurisprudence and, therefore, it would not be appropriate for the High
Court to re-appreciate the evidence and come to its own conclusion on the same
when the evidence had 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
court which would otherwise tantamount to gross miscarriage of justice. To put it
otherwise, if there is non-consideration of any relevant materials or fundamental
violation of the principle of law, then only the power of revision would be made
available.
14. On perusal of the judgments under challenge, even remote evidence
suggesting the said defence case could not be found. Thus, the courts below
rightly given emphasis to the evidence of PW1 and Exts.P1 to P5 to hold that the
complainant discharged the initial burden in the matter of transaction which led to
execution of Ext.P1 cheque and thereby, the benefit of twin presumptions under
Sections 118 and 139 of the NI Act was given to the complainant. Accordingly, the
accused was convicted and sentenced.
15. It is a settled law that once the complainant discharged his initial
burden in the matter of transaction led to execution of cheque, the complainant
would get benefit of twin presumptions under Sections 118 and 139 of the N.I Act.
The law is settled on this point.
16. In this connection, I would like to refer a 3 Bench decision of the Apex
Court in [2010 (2) KLT 682 (SC)], Rangappa v. Sri Mohan. In the above
decision, the Apex Court considered the presumption available to a complainant in
a prosecution 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 improving the credibility of negotiable instruments. While S.138 of the
Act specified a strong criminal remedy in relation to the dishonour of cheques, the
rebuttable presumption under S.139 is a device to prevent undue delay in the
course of litigation. However, it must be remembered that the offence made
punishable by S.138 can be better described as a regulatory offence since the
bouncing of a cheque is largely in the nature of a civil wrong whose impact is
usually confined to the private parties involved in commercial transactions. In
such a scenario, the test of proportionality should guide the construction and
interpretation of reverse onus clauses and the accused/defendant cannot be
expected to discharge an unduly high standard or proof. In the absence of
compelling justifications, reverse onus clauses usually impose an evidentiary
burden and not a persuasive burden. Keeping this in view, it is a settled position
that when an accused has to rebut the presumption under S.139, the standard of
proof for doing so is that of `preponderance of probabilities'. Therefore, if the
accused is able to raise a probable defence which creates doubts about the
existence of a legally enforceable debt or liability, the prosecution can fail.
Accused can rely on the materials submitted by the complainant in order to raise
such a defence and it is conceivable that in some cases the accused may not
need to adduce evidence of his/her own."
17. In the decision reported in [2019 (1) KLT 598 (SC) : 2019 (1) KHC
774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC
2446 : 2019 CriLJ 3227], Bir Singh v. Mukesh Kumar, the Apex Court
while dealing with a case where the accused has a contention that the cheque
issued was a blank cheque, it was held as under:
"A meaningful reading of the provisions of the Negotiable Instruments Act
including, in particular, Sections 20, 87 and 139, makes it amply clear that a person
who signs a cheque and makes it over to the payee remains liable unless he
adduces evidence to rebut the presumption that the cheque had been issued for
payment of a debt or in discharge of a liability. It is immaterial that the cheque may
have been filled in by any person other than the drawer, if the cheque is duly
signed by the drawer. If the cheque is otherwise valid, the penal provisions of
S.138 would be attracted. If a signed blank cheque 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."
18. 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], Kalamani
Tex (M/s.) & 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 2 nd Appellant had admitted his
signatures on the cheque and the Deed, the Trial Court ought to have presumed
that the cheque was issued as consideration for a legally enforceable debt. The
Trial Court fell in error when it called upon the Complainant-Respondent to explain
the circumstances under which the appellants were liable to pay.
...................
18. Even if we take the arguments raised by the appellants at face value
that only a blank cheque and signed blank stamp papers were given to the
respondent, yet the statutory presumption cannot be obliterated. It is useful to cite
Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD
420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ
3227], P.36., where this Court held that:
"Even a blank cheque leaf, voluntarily signed and handed over by
the accused, which is towards some payment, would attract
presumption under S.139 of the Negotiable Instruments Act, in
the absence of any cogent evidence to show that the cheque was
not issued in discharge of a debt."
Considering the matter within the limited power of revision, nothing
substantiated to unsettle the concurrent verdicts in any manner. Therefore, this
revision fails. Faced with the situation, the learned counsel for the revision
petitioner sought for six month's time to pay the amount. However, considering the
request of the learned counsel for the revision petitioner, I am inclined to grant two
months time from today, to pay the fine amount and therefore, imposing of
sentence shall stand deferred till 17.2.2023 and the accused is directed to appear
before the trial court on 18.2.2023, either to pay the fine amount or to undergo the
default sentence. If the accused fails to appear as directed, the trial court is
directed to execute the sentence, as per law.
Registry is directed to forward a copy of this order to the trial court for
information and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
//TRUE COPY//
PA TO JUDGE
