Mathew Varkey vs State Of Kerala
2023 Latest Caselaw 8434 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
                       CRL.REV.PET NO. 71 OF 2016
AGAINST THE ORDER/JUDGMENT ST 91/2012 OF JUDICIAL MAGISTRATE OF FIRST
                          CLASS -II,THODUPUZHA
CRA 55/2014 OF III ADDITIONAL DISTRICT & SESSIONS COURT, THODUPUZHA /
                     I ADDITIONAL MACT, THODUPUZHA
REVISION PETITIONER/APPELLANT/ACCUSED:

             MATHEW VARKEY
             AGED 54 YEARS,
             NIRAPPEL HOUSE, CHEMMANNAR.P.O,
             UDUMBANCHOLA TALUK.

             BY ADV SRI.SOJAN MICHEAL



RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:

     1       STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM, KOCHI-682031.

     2       SREE GOKULAM CHIT AND FINANCE COMPANY (P)LTD
             ARCOT ROAD, KODAMBAKKAM,
             CHENNAI-600 024,
             REPRESENTED BY POWER OF ATTORNEY HOLDER, JOMY.M.C,
             S/O. CHACKO(SENIOR BUSINESS MANAGER),
             THODUPUZHA BRANCH.

             BY ADVS.
             R1 BY SRI.P.G.MANU, SR.PUBLIC PROSECUTOR
             R2 BY SRI.K.SIVAKUMAR


     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
26.07.2023, THE COURT ON 07.08.2023 DELIVERED THE FOLLOWING:
 CRL.REV.PET NO. 71 OF 2016
                                   2



                            ORDER

Dated this the 7th day of August, 2023

This revision petition has been filed under Sections 397

and 401 of Code of Criminal Procedure (hereinafter referred to

as Cr.P.C. for convenience), challenging judgment in

S.T.No.91/2012 dated 19.02.2014 on the files of the Judicial

First Class Magistrate Court-II, Thodupuzha and also in

Crl.A.No.55/14 dated 10.08.2015 on the files of the Additional

Sessions Court-III, Thodupuzha.

2. The revision petitioner is the sole accused in the

above case. The respondents herein are the original

complainant as well as State of Kerala.

3. Heard the learned counsel for the revision petitioner

and also the learned Public Prosecutor. No representation for

the 2nd respondent though Adv.K.Sivakumar filed Vakalat for the

2nd respondent/original complainant.

4. I shall refer the parties in this revision petition as

'accused' and 'complainant', for convenience. CRL.REV.PET NO. 71 OF 2016

5. The brief facts of the case:

The specific case of the complainant-M/s.Sree Gokulam

Chit and Finance Company (P) Ltd is that the accused herein,

(Mathew Varkey) who stood as surety for a chitty prize availed

by Sri.Devasia P.D., had issued cheque dated 11.07.2011 for

Rs.1,98,059/- (Rupees one lakh ninety eight thousand and fifty

nine only) towards repayment of the amount due under the chitty

when the above said Devasia P.D. defaulted the payment of the

chitty amount as agreed. The further case of the complainant is

that when the above said cheque was presented for collection,

the same got dishonoured for want of sufficient funds. Even

though notice demanding the amount covered by the cheque

was issued, the accused did not pay the amount. Accordingly,

the complainant launched prosecution alleging commission of

offence punishable under Section 138 of the Negotiable

Instruments Act (for short 'the NI Act' hereinafter).

6. Initially, the complaint was filed before the Chief

Judicial Magistrate Court, Thodupuzha and the case got CRL.REV.PET NO. 71 OF 2016

numbered as S.T.No.106/2012. Later, the same was transferred

to Judicial First Class Magistrate Court-II, Thodupuzha and re-

numbered as S.T.No.91/2012. The Judicial First Class

Magistrate Court-II, Thodupuzha secured the presence of the

accused for trial and tried the matter. During trial, PWs 1 to 3

were examined and Exts.P1 to P13 were marked on the side of

the complainant.

7. On completion of 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.

Making use of the said opportunity, DWs 1 to 3 were examined

Exts.D1 to D6 were marked on the side of defence.

8. However, on appreciation of evidence, after hearing

both sides, the learned Magistrate found that the accused

committed offence punishable under Section 138 of the NI Act.

Accordingly, he was sentenced to undergo simple imprisonment

for four months and to pay fine of Rs.1,98,059/- for the offence

punishable under Section 138 of the NI Act. Fine was ordered to CRL.REV.PET NO. 71 OF 2016

be paid as compensation to the complainant under Section

357(1) of Cr.P.C. and default sentence for a period of three

months also was imposed.

9. Aggrieved by the judgment of the Judicial First Class

Magistrate Court-II, Thodupuzha, the revision petitioner filed

appeal before the Additional Sessions Court, Thodupuzha and

on re-appreciation of evidence, the learned Additional Sessions

Judge modified the sentence to payment of fine of Rs.1,98,059/-

and imposed three months default imprisonment, on failure to

pay fine.

10. Thus, the concurrent verdicts of conviction imposed

by the trial court as well as the appellate court and the modified

sentence imposed by the appellate court are under challenge in

this revision petition. The specific case of the complainant before

the courts below was that the accused stood as surety for a

chitty transaction in relation to Sri.Devasia P.D. and he had

issued Ext.P8 cheque to discharge liability to the tune of

Rs.1,98,059/- outstanding in the said chitty. According to the CRL.REV.PET NO. 71 OF 2016

accused, he never stood as a surety in relation to a chitty

transaction pertaining to Sri.Devasia P.D. But the specific case

of the accused is that Ext.P8 cheque was given as security in

the year 2006 to the company at the time when his sister,

Smt.Mercy Devasia, who had chitty transaction with the

company, availed chitty prize. The further case of the accused

was that Smt.Mercy Devasia had cleared the entire liability and

as such, no legally enforceable debt to be realised from the

accused acting on the security cheque issued in relation to the

chitty transaction during 2006 at the instance of Smt.Mercy

Devasia.

11. The learned counsel for the accused/revision

petitioner reiterated the said contention and he relied on the

evidence of DW1 to DW3 and Exts.D1 to D6 to substantiate the

case of the accused.

12. In fact, this contention was raised before the trial

court, relying on the evidence of DWs 1 to 3 and D1 to D6. DW1

examined is none other than the accused and he deposed CRL.REV.PET NO. 71 OF 2016

before the trial court in tune with his case. DW2, Smt.Mercy

Devasia, examined before the trial court deposed before the

court that the accused herein stood as surety in connection with

chitty transaction for DW2 as well as for her husband, Sri.P.D.

Devasia and he is the brother-in-law of the accused. Ext.D3 is

the cheque signed by Smt.Mercy Devasia (DW2) and Ext.D4 is

the postal acknowledgment card signed by her. During cross-

examination, DW2 given evidence that she did not send any

reply to the notice received in S.T.58/2008, wherein it was

specified that her surety was Sri.P.D.Joseph. Sri.P.D.Joseph

was examined as DW3 and he also deposed that he stood as

surety for his brother Sri.P.D.Devasia and he was not a surety

for any other person for the chitty with the complainant. The trial

court discussed the evidence in paragraph Nos.13 to 19 and

negatived the defence case put up by the accused. Even though

the said contention was raised by the appellate court, the

appellate court also negatived the contention.

13. In this case, from the side of the complainant, apart CRL.REV.PET NO. 71 OF 2016

from the cheque, guarantee agreements dated 01.02.2006 and

24.02.2006 and debt acknowledgment letter dated 01.02.2006

also were let in evidence to show that the complaint herein stood

as surety for the chitty transaction with Sri.P.D.Devasia and

therefore, the case put up by the accused contending that he

had issued Ext.P8 cheque towards security for the chitty

transaction of Sri.P.D.Devasia was found against. It is relevant to

note that though the accused had a contention that Ext.P8

cheque was issued during 2006 towards security to the chitty

pertaining to one Mercy Devasia (Wife of Sri. Devasia P.D.), no

convincing evidence forthcoming why Ext.P8 cheque allegedly

issued by the accused was not taken back. In this connection,

the evidence of DW2 (Smt.Mercy Devasia) assumes

significance. Her evidence is hat the accused stood as surety

for the chitty transaction pertaining to Sri.Devasia P.D. and DW2.

Thus, the evidence of DW1 negatives the case of the accused.

In fact, nothing is substantiated in this matter to hold that the

finding of the trial court as well as the appellate court in this CRL.REV.PET NO. 71 OF 2016

regard is perverse and illegal to have interference by exercising

power of revision.

14. 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. Decisions reported in [(1999) 2 SCC 452 : 1999

SCC (Cri) 275], State of Kerala v. Puttumana Illath

Jathavedan Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC

(Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao

Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda,

are on this point.

15. In this case, the evidence of Pws1 to 3 supported by

Exts.P1 to P13, categorically established the transaction as well

as execution of the cheque, as contended by the complainant

and the courts below given benefit of twin presumptions in

favour of the complainant accordingly.

16. No doubt, law regarding presumptions under

Sections 118 and 139 of the N.I. Act also well settled on the CRL.REV.PET NO. 71 OF 2016

point that when the complainant discharged the initial burden to

prove the transaction led to execution of the cheque, the

presumptions under Sections 118 and 139 of the N.I. 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. It has been settled in law that the accused can

either adduce independent evidence or rely on the evidence

tendered by the complainant to rebut the presumptions. See

decisions reported in [2010 (2) KLT 682 (SC)], Rangappa v.

Mohan; [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, [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. In this case, the courts below had given

benefit of presumptions in favour of the complainant, on the CRL.REV.PET NO. 71 OF 2016

finding that the complainant discharged his initial burden. The

said findings are perfectly justified in view of the discussions

held above.

17. For the above reasons, this revision petition must fail

and is accordingly, dismissed.

18. Since the transaction is of the year 2007, I am

inclined to grant one month time from today to the accused to

pay the compensation and therefore, execution of the sentence

shall stand deferred till 04.09.2023 and the accused is directed

to appear before the trial court on 05.09.2023, either to pay the

fine amount or to undergo the default sentence.

19. In default to do so, 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

trial court for information and compliance.

Sd/-

A. BADHARUDEEN JUDGE nkr