Velukutty Nair vs K. Damodaran Potty
2022 Latest Caselaw 11552 Ker

        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.878 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC 85/2012 OF         JUDICIAL
MAGISTRATE OF FIRST CLASS -III, NEDUMANGAD
CRA 336/2014 OF ADDITIONAL DISTRICT COURT &         SESSIONS
COURT - V, THIRUVANANTHAPURAM
REVISION PETITIONER/APPELLANT/ACCUSED:

         VELUKUTTY NAIR, AGED 85 YEARS,
         SON OF RAMAN PILLAI,
         (MISTAKENLY SHOWN AS D/O.RAMAN PILLAI IN THE
         LOWER COURT JUDGMENT),
         DARWIN SADANAM, OZHUKUPARA, ANADU MURI,
         PALUVALLY P.O, THENNOOR VILLAGE, NEDUMANGAD,
         THIRUVANANTHAPURAM, PIN - 695562.

         BY ADV. SRI.A.S.SHAMMY RAJ

RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

    1    K. DAMODARAN POTTY,
         SON OF D.KRISHNAN POTTY,
         KEEZHEKONATHU MADOM, PIRAPPANCODE,
         PIRAPPANCODE P.O, VENJARAMMOODU,
         THIRUVANANTHAPURAM, PIN - 695607.

    2    STATE OF KERALA,
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, HIGH COURT P.O,
         ERNAKULAM, PIN - 682031.

         BY ADVS.
         SRI.PIRAPPANCODE V.S.SUDHEER
         SRI.AKASH S.(K/980/2008)
         SRI.GIRISH KUMAR M S(K/001593/2018)
         SMT.V.S.VARALEKSHMI(K/000910/2019)
         SMT.DEVIKA JAYARAJ(K/003117/2022)
         SMT.C.SEENA, PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20.12.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 Crl.R.P.No.878 of 2022
                                  2

                          O R D E R

Dated this the 20th day of December, 2022

This Revision Petition has been filed under

Sections 397 and 401 of the Code of Criminal

Procedure (hereinafter referred as 'Cr.P.C.',

for short), by the revision petitioner, who is

the sole accused in C.C. No.85/2012 on the files

of the Judicial First Class Magistrate Court-

III, Nedumangad, arraying the original

complainant as the 1st respondent and State of

Kerala as the 2nd respondent.

2. The revision petitioner impugns judgment

in C.C.No.85/2012 dated 10.10.2014 on the file

of the Judicial First Class Magistrate Court-

III, Nedumangad and the judgment in Criminal

Appeal No.336/2014 dated 31.05.2017 on the file

of the Additional Sessions Court-V,

Thiruvanthapuram arising therefrom.

3. Heard the learned counsel for the

revision petitioner as well as the learned

Public Prosecutor.

Crl.R.P.No.878 of 2022

4. I shall refer the parties in this

revision as 'complainant' and 'accused' for easy

reference.

5. Bereft of unnecessary details, the

specific case put up by the complainant before

the trial court was that the accused borrowed

Rs.4 lakh from the complainant and for the

repayment of the same, cheque for the said sum

was issued. Though notice was issued demanding

the said sum, the accused failed to repay the

same and, thus the prosecution was launched

under Section 138 of Negotiable Instruments Act

(hereinafter referred as 'NI Act', for short)

before the Judicial First Class Magistrate-III,

Nedumangad.

6. The trial court proceeded with trial.

During trial, PW1 was examined and Exts.P1 to P6

were marked.

7. On completion of prosecution evidence,

the accused was questioned under Section 313(1)

(b) of Cr.P.C. and provided opportunity to Crl.R.P.No.878 of 2022

adduce defence evidence. Accordingly, DW1 was

examined and Ext.D1 marked on the side of the

accused.

8. The trial court ventured the matter and

the accused was convicted for the offence

punishable under Section 138 of the NI Act and

he was sentenced to undergo simple imprisonment

for a period of one year and to pay fine of

Rs.4,00,000/- (Rupees Four Lakh Only) as

compensation to the complainant under Section

357 of Cr.P.C. It was ordered further that in

case of default in payment of fine, the accused

would undergo simple imprisonment for a further

period of six months.

9. The judgment in C.C.No.85/2012 dated

10.10.2014 was challenged before the Sessions

Court-V, Thiruvananthapuram. The learned

Sessions Judge also confirmed the said

conviction and sentence as per judgment dated

31.05.2017 in Crl.Appeal No.336/2014.

10. The concurrent verdicts entered into by Crl.R.P.No.878 of 2022

the trial court as well as by the appellate

court are under challenge in this revision

petition. While impeaching the veracity of the

concurrent verdicts of the courts below, the

learned counsel for the accused reiterated the

contention raised before the courts below and

canvassed acquittal of the accused.

11. The contention raised by the trial court

was that there was no financial transaction

between the complainant and the accused.

Further, there was an agreement for the same

between the accused and one Sasi. During this

transaction, the accused had issued the present

cheque to the above said Sasi and later the said

cheque was misused and foisted the present

complaint.

12. On appraisal of evidence, the courts

below negatived the contention for want of

evidence, to substantiate the same.

13. Going by the judgments on par with the

contention raised by the learned counsel for the Crl.R.P.No.878 of 2022

accused/revision petitioner, before this Court,

in fact a feeble contention without support of

the evidence that had been canvassed before the

trial court and appellate court, had been

reiterated before this Court also. But no

materials available in this case to substantiate

the said contention. In fact, nothing urged to

revisit the concurrent verdicts of conviction

entered into by the trial court and appellate

court by exercising power of revision.

14. In this matter, this Court is exercising

power of revision and the power of revision is

not available to appreciate or re-appreciate to

have a contra-finding.

15. 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 Crl.R.P.No.878 of 2022

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. ..."

Crl.R.P.No.878 of 2022

16. 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 Crl.R.P.No.878 of 2022

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."

17. 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 Crl.R.P.No.878 of 2022

miscarriage of justice. To put it otherwise, if

there is non-consideration of any relevant

materials, which would go to the root of the

matter or any fundamental violation of the

principle of law, then only the power of

revision would be made available.

18. In this matter, the courts below

observed that the accused herein settled a

previous prosecution for the offence punishable

under Section 138 of NI Act and issued the

present cheque. Further, the courts below given

benefit of presumptions under Sections 118 and

139 of NI Act in favour of the complainant, on

finding that the evidence of PW1 is believable

to act upon the same to hold that the said

evidence is sufficient enough to discharge the

initial burden cast upon the complainant.

19. Regarding law on presumptions, I would

like to refer a 3 Bench decision of the Apex

Court in [2010 (2) KLT 682 (SC)], Rangappa v. Crl.R.P.No.878 of 2022

Sri Mohan. In the above decision, the Apex Court

considered the presumption available to a

complainant in a prosecution under Section 138

of the NI 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 Crl.R.P.No.878 of 2022

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."

20. 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 Crl.R.P.No.878 of 2022

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."

21. 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.) & Crl.R.P.No.878 of 2022

anr. v. P.Balasubramanian the Apex Court

considered the amplitude of presumptions under

Sections 118 and 139 of the NI Act and 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 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 Crl.R.P.No.878 of 2022

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."

22. Thus the law is clear on the point that

when the complainant discharges the initial

burden to prove the transaction led to execution

of the cheque, the presumption under Sections

118 and 139 of the NI Act would come into play.

No doubt, these presumptions are rebuttable and

it is the duty of the accused to rebut the

presumptions and the standard of proof of

rebuttal is nothing but preponderance of

probabilities.

23. In this matter, the trial court as well Crl.R.P.No.878 of 2022

as the appellate court correctly appreciated and

re-appreciated the evidence and came to the

conclusion that the evidence available

established commission of offence punishable

under Section 138 of NI Act by the accused and,

accordingly, the accused was convicted. In fact,

there is no reason to revisit the concurrent

verdicts of conviction.

24. On scrutiny of the materials available

with the limited power of revision, nothing

substantiate to interfere with the concurrent

findings of conviction.

25. Faced with the situation, the learned

counsel for the accused sought for modification

of the sentence to meet the ends of justice.

26. Since the trial court imposed

substantive sentence for a period of one year

and to pay fine of Rs.4 lakh and in default of

payment, imposed simple imprisonment for a

period of six months, the sentence requires

modification to meet the ends of justice. Crl.R.P.No.878 of 2022

27. Therefore, I am inclined to modify the

sentence. In the result, this revision petition

is allowed in part, as under:

i. The concurrent verdicts of conviction stand confirmed.

ii. The sentence is modified. Thereby the accused is sentenced to undergo simple imprisonment for a day till rising of the court and to pay fine of Rs.4,00,000/- (Rupees Four lakh only) for the offence punishable under Section 138 of the NI Act, as compensation under Section 357(1)(b) of Code of Criminal Procedure.

iii. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.

iv. Acting on the request of the learned counsel for the revision petitioner, two weeks time from today is granted to undergo the sentence and to pay the fine.

v. The accused is directed to appear before the trial court on 05.01.2023 before the trial court to undergo the sentence and to pay the fine.

vi. Execution of the sentence shall deferred till 04.01.2023.

Crl.R.P.No.878 of 2022

vii. If the accused fails to appear before the trial court as directed, the trial court is directed to execute the sentence as per law, without fail.

Registry is directed to forward a copy of

this order to the Judicial First Class

Magistrate Court-III, Nedumangad, for

information and compliance.

Sd/-

A.BADHARUDEEN, JUDGE.

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