Kerala High Court

Koyakutty P H vs Rajitha Soman on 18 January, 2023

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA,
                          1944
               CRL.REV.PET NO. 33 OF 2023
    AGAINST JUDGMENT DATED 29.10.2019 IN CRL.APPEAL
 NO.74/2018 OF DISTRICT AND SESSIONS COURT, ERNAKULAM
   ST NO.4839/2015 DATED 26.02.2018 OF JUDICIAL FIRST
            CLASS MAGISTRATE COURT, KAKKANAD
REVISION PETITIONER/APPELLANT/ACCUSED :

         KOYAKUTTY P H
         AGED 54 YEARS
         S/O HYDROSE,
         POONCHERY HOUSE,
         OLD GCDA, KUNJATTUKARA,
         NOW RESIDING AT ULLAS NIVAS,
         NEAR KRISHI BHAVAN,
         EDATHALA-683561,
         PIN - 683561
         BY ADVS.
         PRAVEEN K. JOY
         T.A.JOY
         E.S.SANEEJ
         M.P.UNNIKRISHNAN
         M.K.SAMYUKTHA
         N.ABHILASH
         DEEPU RAJAGOPAL
         SANDRA S.KUMAR
         RANIYAL NIYADA P.


RESPONDENTS/RESPONDENT/COMPLAINANT AND STATE :

    1    RAJITHA SOMAN
         W/O SOMAN,
         MONAPPILLY HOUSE,
         KUNATTUKARA,
         EDATHALA P.O., ALUVA,
         ERNAKULAM DISTRICT, PIN - 683561
 Crl.R.P.No.33 of 2023
                                -:2:-




      2        STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA,
               PIN - 682031

               BY ADV SRI.ABOOBACKER P.K.
               SRI.G.SUDHEER, PUBLIC PROSECUTOR



          THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 18.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 Crl.R.P.No.33 of 2023
                                      -:3:-




                          A.BADHARUDEEN, J.
     --------------------------------------------------------
                         Crl.R.P.No.33 of 2023
      --------------------------------------------------------
            Dated this the 18th day of January, 2023


                                  ORDER

This is a revision petition filed under

Sections 397 and 401 of the Code of Criminal

Procedure (hereinafter will be referred as Cr.P.C. for

convenience) and the revision petitioner herein is the

accused in S.T.No.4839 of 2015 on the files Judicial

First Class Magistrate Court, Kakkanad. The

respondents herein are the original complainant as

well as the State of Kerala.

2. The revision petitioner impugns

judgment in S.T.No.4839 of 2015 dated 26.02.2018

and the judgment in Crl.Appeal No.74 of 2018 dated Crl.R.P.No.33 of 2023

29.10.2019 on the file of the District and Sessions

Court, Ernakulam.

3. Heard the learned counsel for the

revision petitioner/the accused and the learned Public

Prosecutor on admission.

4. I shall refer the parties in this Revision

Petition as 'complainant' and 'accused' for

convenience.

5. Summary of the case put up by the

complainant before the trial court is as under:

The complainant launched prosecution

alleging commission of offence punishable under

Section 138 of the Negotiable Instruments Act

(hereinafter will be referred as NI Act for

convenience), when cheque for Rs.2 lakh dated

25.07.2015 alleged to be issued by the accused in

favour of the complainant, was dishonoured, when it Crl.R.P.No.33 of 2023

was presented for collection. After dishonour of the

cheque, the complainant issued legal notice of demand

and the accused failed to repay the same even after

notice.

6. The trial court secured the presence of

the accused for trial and during trial, PW1 to PW3

examined and Exts.P1 to P7 series were marked on

the side of the complainant.

7. After questioning the accused under

Section 313(1)(b) of Cr.P.C, though opportunity was

provided to the accused to adduce defence evidence,

no defence evidence was adduced.

8. The trial court appraised the evidence

and finally convicted the accused for the offence

punishable under Section 138 of the NI Act and

sentenced to undergo simple imprisonment for a

period of one month and to pay a fine of Crl.R.P.No.33 of 2023

Rs.2,46,500/- and in default of payment of fine,

simple imprisonment for a further period of six

months was ordered.

9. The accused assailed the judgment of

the trial court in Crl.Appeal No.74 of 2018 before the

District and Sessions Court, Ernakulam and as per

judgment dated 29.10.2019, the learned Sessions

Judge also confirmed the conviction, while modifying

and reducing the sentence to imprisonment till rising

of the Court under Section 138 of the NI Act and

payment of fine of Rs.2,46,500/- as compensation

under Section 357(1) of Cr.P.C. In default of payment

of fine, simple imprisonment for six months was

ordered.

10. While attempting to upset the

concurrent verdicts of conviction and sentence, the

learned counsel for the revision petitioner failed to Crl.R.P.No.33 of 2023

substantiate anything, so as to invoke the power of

revision available to this Court in any manner.

Accordingly, he prayed for granting six months time to

pay the amount.

11. Going by the grounds raised in the

grounds of appeal, in fact, the same are matters

required to be addressed on re-appreciation of

evidence. The power of this Court is not exhaustive to

re-appreciate the evidence.

12. 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 Crl.R.P.No.33 of 2023

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. ..."

13. 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 Crl.R.P.No.33 of 2023

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."

Crl.R.P.No.33 of 2023

14. 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 the root of the matter or any fundamental Crl.R.P.No.33 of 2023

violation of the principle of law, then only the power of

revision would be made available.

15. The courts below relied on by the

evidence of PW1 to PW3 and Exts.P1 to P7 to hold that

the complainant succeeded in discharging his initial

burden in the matter of transaction led to execution of

Ext.P1 cheque based on Ext.P6 agreement, a

mortgage deed. In this case, the case put up by the

accused is that Ext.P1 was issued at the time when he

borrowed Rs.10,000/- from the complainant as

security. The further contention was that the said

liability was discharged and the complainant kept the

cheque on the premise that the same was lost. But

the courts below rightly negatived the said contention

for want of evidence.

16. As I have already pointed out, nothing

argued to substantiate anything to be interfered by Crl.R.P.No.33 of 2023

exercising power of revision. In this case, the trial

court as well as the appellate given benefit of

presumptions in favour of the complainant, on the

finding that the complainant succeeded in discharging

his initial burden. Law regarding presumption is also

settled as well.

17. 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 Crl.R.P.No.33 of 2023

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."

18. In the decision reported in [2019 (1) KLT

598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : Crl.R.P.No.33 of 2023

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."

19. 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 Crl.R.P.No.33 of 2023

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 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 Crl.R.P.No.33 of 2023

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."

20. In view of the discussion held above,

there is nothing in this matter to revisit either the

conviction or the sentence and therefore, the revision

must fail.

21. Faced with the situation, the learned

counsel for the accused sought for six months time to

pay the amount. Considering the compensation amount

would come to Rs.2,46,500/-, I am inclined to grant

three months time from today to pay the compensation.

22. In the result, this revision petition fails Crl.R.P.No.33 of 2023

and it is, accordingly, dismissed.

23. However, the revision petitioner/the