Simi Suresh vs Anand V
2022 Latest Caselaw 11553 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. 895 OF 2022
    AGAINST THE JUDGMENT DATED 20/8/2022 IN CRL.A.NO.26/2019 OF
    ADDITIONAL SESSION'S COURT-VIII, ERNAKULAM AND AGAINST THE
 JUDGMENT DATED 10/1/2019 IN C.C.NO.4840/2016 ON THE FILES OF THE
JUDICIAL FIRST CLASS MAGISTRATE'S COURT (N.I.ACT CASES), ERNAKULAM


REVISION PETITIONER/APPELLANT/ACCUSED:

            SIMI SURESH
            W/O. SURESH, AGED 35 YEARS,
            RESIDING AT PATTATHILPARAMBU, KACHERYPADY,
            PALLURUTHY P.O., KOCHI, PIN - 682006
            BY ADVS.
            T.MADHU
            C.R.SARADAMANI
            K.V.BINOD
            SHAHID AZEEZ
            RENJISH S. MENON


RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:

    1       ANAND V
            AGED 30 YEARS, S/O. VELLAPPAN,
            RESIDING AT AKAMPADAM HOUSE,
            POTHUNDY P.O., PALAKKAD DISTRICT, PIN - 678508
    2       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031


            PP-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.R.P No. 895 of 2022
                                             2


                                     ORDER

Dated this the 20th day of December, 2022

This revision petition has been filed under

Sections 397 and 401 of Code of Criminal Procedure

(hereinafter referred as Cr.P.C. for convenience). The revision

petitioner is the sole accused in C.C.No.4840/2016 on the

file of the Judicial First Class Magistrate Court (N.I.Act

Cases), Ernakulam and the appellant in Crl.A.No.26/2019 of

the Court of Additional Sessions Judge-VIII, Ernakulam. The

respondents herein are the original complainant as well as

State of Kerala.

2. I would like to refer the parties in this revision

petition as 'accused' and 'complainant', for convenience.

3. Heard the learned counsel for the accused and

the learned Public Prosecutor, representing State. Notice to

the complainant (1st respondent) stands dispensed with.

4. In this matter, 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 Crl.R.P No. 895 of 2022

convenience), when cheque for Rs.2,20,000/- dated

24.03.2015 was dishonored for want of funds.

5. The specific case put up before the trial court was

that, during the month of March 2015 the accused requested

the complaint to grant loan of Rs.2,50,000/- with offer to

repay the same within a period of six months. In

consideration of the cordial relationship between the accused

and the complainant, the complainant who had no money to

advance loan, availed a Bank loan with the help of his father

and Rs.2,20,000/- out of the said amount was given to the

accused.

6. Since the accused failed to make the payment on

demand, the complainant lodged a complaint under Section

142 of the N.I.Act.

7. The trial court secured the presence of accused

and complainant for trial and finally tried the matter. During

trial, PWs 1 and 2 were examined and Exts.P1 to P5 marked

on the side of the complainant. After questioning the

accused under Section 313(1)(b) of the Cr.P.C., when

opportunity was given, DW1 was examined and Ext.X1 was

also marked.

Crl.R.P No. 895 of 2022

8. Thereafter, the trial court appraised the evidence

and finally convicted the accused for the offence punishable

under Section 138 of the N.I.Act and sentenced to undergo

simple imprisonment for three months and to pay fine of

Rs.2,20,000/- and the fine was ordered to be paid as

compensation to the complainant and in default of payment

of fine simple imprisonment for one month also was

imposed.

9. Although, the accused challenged the conviction

and sentence imposed by the trial court, before the

Additional Sessions Judge-VIII, the learned Additional

Sessions Judge also confirmed the conviction while modifying

the substantive sentence as fine and the accused is directed

to pay fine of Rs.2,20,000/- and in default of payment of

fine, she shall undergo simple imprisonment for three

months.

10. While attempting to unsettle the concurrent

verdicts of conviction and modified sentence imposed by the

Appellate Court, the learned counsel for the accused/revision

petitioner reiterated the contentions before the trial court to

the effect that, the complainant failed to prove the source to Crl.R.P No. 895 of 2022

advance Rs.2,20,000/- as loan. On perusal of the judgments,

it appears that, the complainant put up a specific case right

from the very beginning that, he had arranged loan through

his father, when the accused demanded for the amount. PW2,

the manager of the Vallanghy Vithanassery Service Co-

operative Bank, Pezhumpara Branch was examined to prove

availing of loan of Rs.4,00,000/- by the father of the

complainant and the loan details had been let in evidence as

Ext.X1 series. The Courts below relied on the said evidence

to hold that the complainant had proved his source to

advance the amount to the accused and negated the

contention raised by the learned counsel for the

accused/revision petitioner on that ground.

11. In this case, the trial court as well as the

Appellate Court given emphasis to the evidence of PWs 1

and 2 read along with Exts.P1 to P5 and Ext.X1 to hold that,

the complainant discharged his initial burden in the matter of

transaction and execution of cheque. Therefore, the courts

below given benefit of twin presumptions in favour of the

complainant.

12. Law regarding presumption is well settled. In this

connection, I would like to refer a 3 Bench decision of the Crl.R.P No. 895 of 2022

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 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 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 Crl.R.P No. 895 of 2022

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."

13. 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 Crl.R.P No. 895 of 2022

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."

14. 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 Crl.R.P No. 895 of 2022

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 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 Crl.R.P No. 895 of 2022

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."

15. In fact, nothing substantiated in this case to

unsettle the concurrent verdicts. Even though, the learned

counsel argued things which would require re-appreciation of

evidence, this Court cannot look into those aspects, by re-

appreciating the evidence, since, power of revision is not so

wide enough to do so.

16. In this context, I am inclined to refer the power

of revision available to this Court under Section 401 of

Cr.P.C. r/w Section 397, which 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 Crl.R.P No. 895 of 2022

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. ..."

17. 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 Crl.R.P No. 895 of 2022

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."

18. The said ratio has been followed in a latest

decision of the Supreme Court reported in [(2018) 8 SCC Crl.R.P No. 895 of 2022

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, 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.

19. In fact, nothing substantiated in this revision

petition to interfere with the concurrent findings of conviction

as well as modified sentence of imprisonment to the least

minimum possible, in any manner.

20. In the result, this revision petition fails and is

accordingly dismissed.

Crl.R.P No. 895 of 2022

21. Faced with the situation, the learned counsel for

the petitioner sought for four months time. Considering the

fact that, the cheque is of the year 2015 and the amount as

Rs.2,20,000/-, I am inclined to grant two months time to the

accused from today to pay the fine and to undergo the

sentence.

22. Therefore, the revision petitioner/accused is

directed to surrender before the trial court on 20.02.2023 to

undergo the sentence and to pay the fine. If the revision

petitioner/accused fails to surrender, as directed, the trial

court shall execute the sentence as per law without fail. The

execution of sentence stands deferred till 19.02.2023.

Registry is directed to forward a copy of this order to

the trial court for information and compliance within seven

days.

Sd/-

A. BADHARUDEEN SK JUDGE