E.K.Hariharan vs Benny Joseph
2023 Latest Caselaw 1625 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
                  CRL.REV.PET NO.388 OF 2020

AGAINST THE ORDER/JUDGMENT IN CRA 134/2018 OF VI
ADDITIONAL DISTRICT COURT, ERNAKULAM
ST 1871/2015 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT,
CHOTTANIKKARA(TEMPORARY)
REVISION PETITIONER/APPELLANT/ACCUSED:

            E.K.HARIHARAN, AGED 58 YEARS,
            S/O.KARUNAKARAN, EDAVAZHIKKAL HOUSE,
            UDAYAMPEROOR, MANAKUNNAM VILLAGE,
            ERNAKULAM-682 307.

            BY ADVS.
            SRI.ANOOP JOSEPH
            SRI.K.B.ARUNKUMAR
            SMT.ZERENE LINDA MITCHEL
            SMT.K.K.DAJULA
            SMT.ASWANI THUVVAKKADAN

RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

    1       BENNY JOSEPH, AGED 47 YEARS, S/O. JOSEPH,
            MUKKADAYIL HOUSE, MONIPPILLY KARA,
            THIRUVANIYOOR, ERNAKULAM, PIN CODE-682 308.

    2       STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM-682 031.

            BY ADVS.SRI.PAUL K.VARGHESE
                    SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR


        THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION    ON   27.01.2023,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 Crl.R.P.No.388 of 2020
                                    2

                          O R D E R

Dated this the 27th day of January, 2023

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 S.T. No.1871/2015 on the

files of the Judicial First Class Magistrate

Court, Chottanikkara, arraying the original

complainant as the 1st respondent and State of

Kerala as the 2nd respondent.

2. The revision petitioner impugns judgment

in S.T.No.1871/2015 dated 12.03.2018 on the

files of the Judicial First Class Magistrate

Court, Chottanikkara and the judgment in

Criminal Appeal No.134/2018 dated 25.01.2020 on

the files of the Additional Sessions Judge,

Ernakulam arising therefrom.

3. Heard the learned counsel for the

revision petitioner, learned counsel for the 1 st

respondent as well as the learned Public Crl.R.P.No.388 of 2020

Prosecutor.

4. I shall refer the parties in this

revision as 'complainant' and 'accused' for easy

reference.

5. The brief facts of the case put up by

the complainant before the trial court are as

under:

The complainant launched prosecution

alleging commission of offence punishable under

Section 138 of Negotiable Instruments Act

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

by the accused, when cheque for Rs.15,00,000/-

dated 17.10.2015 alleged to be issued by the

accused to the complainant to repay the said

sum, which was originally borrowed during the

month of January 2014 for his business purpose,

got dishonoured for want of sufficient funds,

when it was presented for collection.

6. The trial court proceeded with trial.

During trial, PW1 was examined and Exts.P1 to

P7(a) were marked on the side of the Crl.R.P.No.388 of 2020

complainant.

7. On completion of prosecution evidence,

the accused was questioned under Section 313 of

Cr.P.C. and provided opportunity to adduce

defence evidence. Accordingly, Exts.D1 and D2

marked on the side of the accused.

8. The trial court appraised the evidence

and finally found that the accused committed

offence punishable under Section 138 of the NI

Act and he was sentenced to undergo simple

imprisonment for a period of two years and also

to pay fine of Rs.15,00,000/- (Rupees Fifteen

Lakh Only). The fine was ordered to be given as

compensation to the complainant under Section

357(1)(b) 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 S.T.No.1871/2015 dated

25.01.2020 was challenged before the Additional

Sessions Court, Ernakulam. The learned Sessions Crl.R.P.No.388 of 2020

Judge also confirmed the said conviction and

modified sentence as per judgment dated

25.01.2020 in Crl.Appeal No.134/2018, as under:

In the result, appeal is allowed in part. The conviction of the trial court is confirmed. However, the sentence is modified and reduced and the appellant/accused is sentenced to undergo imprisonment till the rising of the court u/s.138 of the N.I.Act and he shall also pay fine of Rs.15,00,000/- (Rupees Fifteen Lakhs only) as compensation u/s.357(1) Cr.P.C. If the appellant fails to pay the fine, as compensation, he shall undergo simple imprisonment for 6 (six) months.

The learned Magistrate shall take steps to execute the sentence.

The amount, if any, remitted by the appellant/accused before the court shall be adjusted towards payment of compensation to the first respondent/complainant.

10. The concurrent verdicts of conviction

entered into by the trial court as well as by

the appellate court and the modified sentence

imposed by the appellate court are under

challenge in this revision petition.

11. The learned counsel for the accused Crl.R.P.No.388 of 2020

pointed out that the concurrent findings

entered into by the trial court as well as the

appellate court are grossly incorrect.

Appreciation of evidence by the courts below is

also challenged. Further contention is that the

denial of execution of Ext.P2 cheque by the

accused was not considered by the courts below.

12. In addition to that, it is argued that

the complainant miserably failed to discharge

his initial burden so as to avail presumptions

under Sections 118 and 139 of the NI Act, though

the courts below given the same in favour of

the complainant without looking into the said

aspect. It is submitted further that Exts.D1 and

D2 categorically established that the

complainant is a money lender and he had been in

the habit of keeping the signed blank cheques

and stamp papers of his debtors, without any

consideration.

13. In this matter, the courts below given

emphasis to the evidence of PW1 to hold that the Crl.R.P.No.388 of 2020

complainant proved the transaction led to

execution of Ext.P2. Ext.P1 is an agreement

relied on by the courts below dated 08.05.2014

between the complainant and the accused, where

the accused admitted that he had obtained Rs.15

lakh from the complainant and promised to pay

back the said amount in two instalments of Rs.10

lakh and Rs.5 lakh.

14. When the accused was questioned under

Section 313 Cr.P.C., the accused stated that he

did not borrow Rs.15 lakh, but he had borrowed

Rs.12 lakh. He further stated that he had

returned Rs.9 lakh and the remaining amount is

only Rs.3 lakh.

15. Thus, without much ado, it could be held

that the transaction, as stated by the

complainant based on Ext.P1 agreement and Ext.P2

cheque, is partially admitted by the accused

coming to the tune of Rs.12 lakh. Further the

accused raised plea of discharge in relation to

Rs.9 lakh, though no materials placed to see the Crl.R.P.No.388 of 2020

plea of discharge. It is strange to note that

after admitting the transaction in part, then

the accused would contend that the complainant

failed to prove the transaction and execution of

the cheque and the courts below wrongly given

benefit of presumptions in favour of the

complainant.

16. Apart from the partial admission of the

transaction made by the accused, it could be

gathered that PW1 had given evidence in support

of the contention by producing Ext.P1 agreement

also. In fact, during cross-examination of PW1,

nothing extracted to disbelieve PW1, so as to

disbelieve the transaction as well as execution

of Ext.P2 cheque, in consequence of Ext.P1

agreement.

17. It is interesting to note that the

learned counsel for the accused raised a

contention that the accused was forced to sign a

blank cheque and the same was duly filled up and

presented by the complainant without his Crl.R.P.No.388 of 2020

knowledge or consent. It is argued further that

the accused successfully rebutted the

presumptions by evidence.

18. In so far as these contentions are

concerned, the same would go against the

evidence of PW1 as well as the submission of the

accused during Section 313 Cr.P.C. examination.

Thus, the presumptions not at all rebutted.

19. In this matter, this Court is exercising

power of revision and the power of revision is

not available to appreciate or re-appreciate the

evidence to have a contra-finding.

20. 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 Crl.R.P.No.388 of 2020

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

Shankargouda, are on this point.

21. No doubt, law regarding presumptions

under Sections 118 and 139 of the NI Act also

well settled on the 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 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. 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 Crl.R.P.No.388 of 2020

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.

22. It is relevant to refer a latest

decision of the Apex Court reported in [2022(5)

KHC 560(SC)], Oriental Bank of Commerce v.

Prabodh Kumar Tewari, whereas it has been held

that, the fact that the details in the cheque

have been filled up not by the drawer, but by

some other person would be immaterial. The

presumption which arises on the signing of the

cheque cannot be rebutted merely by the report

of a handwriting expert. Even if the details in

the cheque have not been filled up by drawer but

by another person, this is not relevant to the

defense whether cheque was issued towards

payment of a debt or in discharge of a

liability.

Crl.R.P.No.388 of 2020

23. In this case, the courts below had given

benefit of presumptions in favour of the

complainant, on the finding that the complainant

discharged his initial burden. The said finding

is perfectly justified in view of the

discussions held above.

24. 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 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.

25. On reading the concurrent findings of

conviction entered into by the trial court as

well as by the appellate court, both the courts

below fully justified that the complainant

discharged his initial burden in the matter of Crl.R.P.No.388 of 2020

transaction and execution of the cheque and,

therefore, the complainant is entitled to get

benefit of presumptions under Sections 118 and

139 of the N.I Act. In view of the decision, the

concurrent verdicts of conviction as well as the

modified sentence do not require interference in

any manner.

26. In the result, this revision petition

fails and is accordingly dismissed.

27. Faced with the situation, the learned

counsel for the accused sought three months'

time to pay the compensation.

28. Considering the request of the learned

counsel for the accused and taking note of the

fact that the transaction is of the year 2014, I

am inclined to grant three months' time from

today to the accused to pay the compensation.

29. The revision petitioner/accused is

directed to appear before the trial court on

26.04.2023 to pay the compensation and to

undergo the sentence. The execution of the Crl.R.P.No.388 of 2020

sentence shall stand deferred till 25.04.2023.

If the accused fails to surrender, the trial

court is directed to execute the sentence,

without fail.

Registry is directed to forward a copy of

this order to the courts below concerned for

information and compliance.

Sd/-

A.BADHARUDEEN, JUDGE.

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