Ratheesh. A vs Saji C.N
2022 Latest Caselaw 11979 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
                     CRL.REV.PET NO. 899 OF 2022
  AGAINST THE JUDGMENT IN CRL.A.NO.327/2019 OF COURT OF SESSION,
THALASSERY IN STC NO. 1907/2015 OF JUDICIAL FIRST CLASS MAGISTRATE
                           COURT, PAYYANNUR


REVISION PETITIONER/APPELLANT/ACCUSED:

            RATHEESH. A
            S/O NARAYANAN, AGED 41 YEARS, ALAKKAL HOUSE,
            PROPRIETOR, M/S OREN KITCHEN GALLERY,
            KANDOTH P.O, PAYYANNUR, KANNUR DISTRICT, PIN - 670307
            BY ADVS.
            O.V.MANIPRASAD
            JOSE ANTONY
            SRUTHYMON P.R


RESPONDENTS/RESPONDENTS/COMPLAINANT AND THE STATE:

    1       SAJI C.N
            S/O NARAYANAN, AGED 50 YEARS,
            CHENGANA PARAMBIL HOUSE, CHALAKKODE,
            KOORKARA, KOROME, P.O, PAYYANNUR
            KANNUR DISTRICT, PIN - 670307
    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 22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.R.P No. 899 of 2022
                                            2


                                     ORDER

Dated this the 22nd 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 S.T.C.No.1907/2015

on the files of the Judicial First Class Magistrate Court,

Payyannur and the appellant in Crl.A.No.327/2019 on the

files of the Court of Additional Sessions Judge-I, Thalassery.

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. 899 of 2022

convenience), when cheque for Rs.5,00,000/- dated

27.04.2015 was dishonored for want of funds.

5. Since the accused failed to make the payment on

demand, the complainant lodged a complaint under Section

142 of the N.I.Act.

6. The trial court secured the presence of accused

and complainant for trial and finally tried the matter. During

trial, PW1 was 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 no exhibit marked on

the side of the defence.

7. 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 till rising of the court and to pay fine of

Rs.5,00,000/- and the fine was ordered to be paid as

compensation to the complainant and in default of payment

of fine simple imprisonment for four months also was

imposed.

8. Although, the accused challenged the conviction Crl.R.P No. 899 of 2022

and sentence imposed by the trial court, before the

Additional Sessions Judge-I, the learned Additional Sessions

Judge also confirmed the conviction and sentence imposed

by the trial court.

9. While attempting to upset the concurrent

verdicts, the learned counsel for the accused/petitioner,

submitted that, the accused had borrowed an amount of

Rs.3,50,000/- from the complainant (out of which

Rs.15,000/- was the interest for Rs.3,35,000/-) and he had

repaid an amount of Rs.4,20,000/-. Though, the said liability

was discharged, the complainant retained the signed blank

cheque handed over to him at the time of the transaction,

on the premise of some excuses.

10. In this matter, on perusal of the judgments under

challenge, it could be gathered that, the courts below given

emphasis to the evidence of PW1 and Exts.P1 to P5 to hold

that the complainant succeeded in establishing the

transaction led to execution of Ext.P1 cheque. Therefore, the

courts below given benefit of twin presumptions in favour of

the complainant under Sections 118 and 139 of the N.I.Act.

11. Law regarding presumption is well settled. In this Crl.R.P No. 899 of 2022

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 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 Crl.R.P No. 899 of 2022

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."

12. 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. 899 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."

13. 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 Crl.R.P No. 899 of 2022

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 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 Crl.R.P No. 899 of 2022

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."

14. The learned counsel for the accused raised plea

of discharge and given emphasis to the evidence of DW1 to

prove the said plea. DW1 examined is the wife of the

accused. Although, DW1 given evidence that, her father

availed Rs.20,00,000/- as loan and Rs.4,20,000/- was given

to her and she had deposited Rs.4,20,000/- in her account,

but the courts below rightly negatived the said contention

for want of documentary evidence to prove the plea of

discharge. The said finding is perfectly justified. In fact,

nothing substantiated to revisit the concurrent findings, by

exercising the limited power of revision available to this

Court.

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

of revision available to this Court under Section 401 of Crl.R.P No. 899 of 2022

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 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 Crl.R.P No. 899 of 2022

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. ..."

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 Crl.R.P No. 899 of 2022

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."

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

miscarriage of justice. To put it otherwise, if there is non-

consideration of any relevant materials, which would go to Crl.R.P No. 899 of 2022

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 fact, nothing substantiated in this revision

petition to interfere with the concurrent findings of

conviction as well as sentence of imprisonment, in any

manner.

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

accordingly dismissed.

20. Faced with the situation, the learned counsel for

the petitioner sought for four ten months time to pay the

compensation in installments. Considering the fact that, the

cheque is of the year 2015 and the amount as

Rs.5,00,000/-, I am inclined to grant three months time to

the accused from today to pay the fine/compensation and to

undergo the sentence.

21. Therefore, the revision petitioner/accused is

directed to surrender before the trial court on 22.03.2023 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 Crl.R.P No. 899 of 2022

execution of sentence stands deferred till 21.03.2023.

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