Kerala High Court

Sini Jose vs M/S.Sakthan Kuries & Loans [P] Ltd on 6 January, 2023

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                      CRL.REV.PET NO. 8 OF 2023
 AGAINST THE JUDGMENT IN CRL.A.NO.142/2021 OF ADDITIONAL DISTRICT
                         COURT NO.1, THRISSUR
C.C.NO.1841/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR
REVISION PETITIONER/APPELLANT/ACCUSED:

            SINI JOSE
            AGED 44 YEARS
            W/O.LATE JOSE, NEELANKAVIL HOUSE, P.O.PULLAZHI,
            OLARIKKARA, THRISSUR, PIN - 680012
            BY ADV. RENJU SEBASTIAN


RESPONDENTS/RESPONDENTS/COMPLAINANT&STATE:

    1       M/S.SAKTHAN KURIES & LOANS [P] LTD.
            PALLIKULAM ROAD, THRISSUR,
            REPRESENTED BY THE CHAIRMAN SONY JOSE,
            S/O.KOZHIPARAMBAN JOSEPH, CHIYYARAM VILLAGE,
            KURIACHIRA DESOM, THRISSUR DISTRICT., PIN - 680006
    2       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031
            R2 BY SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE


     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.REV.PET NO. 8 OF 2023                2




                                      ORDER

This revision has been filed under Sections 397 and 401 of the Code of

Criminal Procedure (for short 'the Cr.P.C' hereinafter), challenging judgment in

C.C.No.1841/2014, dated 6.9.2021 on the files of the Judicial First Class

Magistrate Court - I, Thrissur and also the judgment in Crl.Appeal No.142/2021

on the files of the I Additional Sessions Court, Thrissur.

2. The revision petitioner is the accused in the above case.

3. The respondents herein are the original complainant as well as the

State of Kerala.

4. Heard the learned counsel for the revision petitioner and the

learned Public Prosecutor, on admission. Notice to the first respondent stands

dispensed with.

5. I shall refer the parties as 'complainant' and 'accused', for

convenience.

6. Bereft of unnecessary details, the case put up by the complainant

before the trial court is as under:

The complainant, a company, by name M/s.Shakthan Kuries & Loans

(P) Ltd, Pallikulam Road, Thrissur, filed complaint under Section 142 of the

Negotiable Instruments Act (for short 'the NI Act' hereinafter), when cheque for

Rs.1,82,984/- (Rupees One Lakh Eighty Two Thousand Nine Hundred and

Eighty Four only), dated 11.12.2013, issued by the accused towards the

discharge of the loan liability availed by the husband of the accused, wherein

accused was the guarantor, got dishonoured.

7. Originally, the case was filed before the Chief Judicial Magistrate

Court, Thrissur as S.T.No.1331/2014 and then made over to the Judicial First

Class Magistrate Court-I, Thrissur.

8. The court below secured the presence of the accused for trial and

during trial, PW1 was examined and Exts.P1 to P10 were marked on the side

of the complainant. On completion of the prosecution evidence, the accused

was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was

provided to her, to adduce defence evidence. Accordingly, DW1 was

examined and Ext.D1 was marked on the side of the defence.

9. The trial court appreciated the evidence and found that the

accused committed offence punishable under Section 138 of the NI Act and

she was sentenced to undergo imprisonment till rising of the court and to pay a

fine of Rs.1,82,984/- (Rupees One Lakh Eighty Two Thousand Nine Hundred

and Eighty Four only) and the fine was ordered to be given as compensation to

the complainant. Default imprisonment for a period of 3 months also was

imposed. The accused challenged the order of trial court before the I Additional

Sessions Court, Thrissur in Crl.Appeal No.142/2021. As per judgment, dated

14.7.2022, the learned Sessions Judge also confirmed the finding of the trial

court and dismissed the appeal.

10. While impeaching the veracity of the concurrent findings entered

into by the trial court as well as the appellate court, the learned counsel for the

accused submitted that the accused is the guarantor of loan liability and the

principal debtor, who was her husband and he is now no more. She also

submitted that the specific contention raised by the accused before the trial

court as well as the appellate court was that, Ext.P1 cheque was issued as a

security and when the accused raised such a contention, the complainant was

bound to produce the details of account relating to the full transaction, to prove

the amount covered by the cheque was due to the complainant. It is, in this

connection, a decision of this Court reported in Susamma Raju v. K.M.Wilson

and Another [2018 (1) KHC 846] has been relied. She also argued that the

details of the loan transaction not produced before the trial court and therefore,

the conviction and sentence are liable to be set aside.

11. Going by the grounds raised in the revision petition, in fact, those

are matters to be decided on appreciation of evidence and the said power is

not available to this Court while exercising revision.

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 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 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."

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 or fundamental violation of the principle

of law, then only the power of revision would be made available.

15. In this matter, the courts below given emphasis to the evidence of

PW1 and Exts.P1 to P10 to hold that the complainant discharged its initial

burden in the matter of transaction which led to execution of Ext.P1 cheque

and thereby, the benefit of twin presumptions under Sections 118 and 139 of

the NI Act was given to the complainant. Accordingly, the accused was

convicted and sentenced.

16. Law is settled on the point that as the complainant discharges its

initial burden in the matter of transaction led to execution of cheque, the

complainant would get the benefit of twin presumptions under Sections 118

and 139 of the N.I Act and therefore the courts below rightly given the benefit

of presumptions in favour of the complainant.

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 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 : 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 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132],

Kalamani Tex (M/s.) & 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 2 nd 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 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. Coming back to the contention raised by the learned counsel for

the accused confined insofar as issuance of Ext.P1 cheque as security is

concerned, the trial court observed that the accused not disputed the alleged

chitty transaction and the accused admitted the transaction. But, the

contention raised was that, Ext.P1 cheque was issued as a security, while

receiving the chitty prize money. This contention could not succeed in view of

the ratio in Kalamani Tex (supra). Going by the ratio in Susamma Raju's

case (supra) also, what has been stated is, when the accused raised a

contention to the effect that the cheque was issued as a blank one, the

complainant was bound to produce the details of account relating to the full

transaction, to prove the amount covered by the cheque. In the present case,

Ext.P7 is the personal ledger, showing the details of loan transaction and for

the balance amount as per Ext.P7, Ext.P1 was issued. Therefore, the

complainant successfully established the loan transaction and balance in tune

with the cheque amount. Therefore, this contention cannot succeed.