Fr.Dr.Sebastian Kanjirathinkal vs N.P.Hamsa And Another
2023 Latest Caselaw 10519 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                    CRL.REV.PET NO. 615 OF 2011
  AGAINST THE JUDGMENT IN CC 144/2002 OF JUDICIAL MAGISTRATE OF
                       FIRST CLASS ,CHAVAKKAD
  CRA 898/2005 OF THE FIRST ADDITIONAL SESSIONS COURT, THRISSUR
REVISION PETITIONER/APPELLANT/ACCUSED:

          FR.DR.SEBASTIAN KANJIRATHINKAL
          AGED 61, S/O. PAPPU KANJIRATHINKAL, KANJOOR P.O,
          VALLAPPILLI VILLAGE, ALUVA TALUK,ERNAKULAM DISTRICT.

          BY ADVS.
          SRI.THOMAS ABRAHAM
          SRI.DIPU.R
          SRI.K.S.HARIDAS
          SMT.MERCIAMMA MATHEW
          SRI.V.RENJITH KUMAR



RESPONDENTS/RESPONDENTS/COMPLAINANT:

    1     N.P.HAMSA , AGED 37 YEARS, S/O ANDIPATTIL
          PADUVINKAL SAITHALI,PAVARATTY AMSOM, MARUTHAYUR
          DESOM,CHAVAKKAD TALUK,THRISSUR.

    2     STATE OF KERALA REPRESENTED BY THE
          PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

          BY ADV SRI.RAJIT



OTHER PRESENT:

          SR PP SMT SEETHA S




     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.R.P. NO. 615 OF 2011                 2




             Dated this the 16th day of October, 2023

                              ORDER

The revision petition is filed assailing the correctness

and propriety of the judgments in Crl.Appeal

No.898/2005 of the Court of the First Additional Sessions

Judge, Thrissur, (Appellate Court) confirming the

judgment passed in C.C No.144/2002 of the Court of the

Judicial Magistrate of First Class, Chavakkad (Trial

Court), finding the revision petitioner guilty and

convicting and sentencing him for the offence under

Sec.138 of the Negotiable Instruments Act ( for brevity,

N.I Act). For the sake of convenience, the parties are

referred to as per their status before the Trial Court. The

revision petitioner was the accused and the first

respondent was the complainant before the Trial Court.

Relevant antecedent facts

2. The complainant had filed the complaint against

the accused alleging that on 7.12.2000, the accused

borrowed a sum of Rs.6,00,000/- promising to repay the

amount within one month. In discharge of the said

liability, the accused had issued Ext P8 cheque dated

30.6.2001 drawn on his bank. The cheque, on

presentation to the Bank for payment, got returned with

an endorsement 'account closed and payment stopped by

drawer'. The complainant issued Ext P11 statutory lawyer

notice to the accused and the accused sent Ext P13 reply

notice to the complainant. However, the accused failed to

pay the demanded amount. Hence, the accused

committed the above offence.

3. The learned Magistrate took cognizance of the

offence. The accused denied the substance of accusation

read against him. In the trial, the complainant examined

himself as PW1 and marked Exts. P1 to P14 in evidence.

The accused denied the incriminating circumstances that

were put against him in the questioning under Sec.313 of

the Code of Criminal Procedure (in short, 'Code'). The

accused examined DWs1 and 2 in the defence evidence.

4. The learned Magistrate, after analysing the

materials on record, found the accused guilty for the

offence under Sec.138 of the N.I Act and convicted and

sentenced him to undergo rigorous imprisonment for a

period of six months and to pay a compensation of

Rs.6,25,000/- to the complainant under Sec.357(3) of the

Code, and in default of the payment of the compensation

to undergo simple imprisonment for a further period of

three months.

5. Aggrieved by the said judgment, the accused

preferred Crl. Appeal No.898/2005 before the Appellate

Court.

6. The Appellate Court, after re-appreciating the

materials placed on record, by the impugned judgment

confirmed the conviction and sentence passed by the

Trial Court and dismissed the appeal.

7. It is assailing the concurrent judgments of the

courts below, the present revision petition is filed.

8. Heard; Sri.Thomas Abraham, the learned counsel

appearing for the revision petitioner; Sri.Rajit, the

learned counsel appearing for the first respondent and

Smt.Seetha.S, the learned Public Prosecutor appearing

for the second respondent-State.

9. Is there any illegality, irregularity or impropriety

in the judgments passed by the courts below?

10. Before proceeding to decide the revision petition,

this Court reminds itself that the revisional power is to be

sparingly exercised only for the purpose of correcting

patent errors, manifest illegality and when there is

misreading of records. Merely because a different view is

possible on a reading of the records, this Court is not

excepted to interfere with the conclusions of the facts

finding courts.

11. Keeping the above principles in mind, this Court

proceeds to decide the revision petition.

12. The complainant's case is that, the accused had

borrowed a sum of Rs.6,00,000/-, and in discharge of the

said liability, he had issued Ext.P8 cheque, which on

presentation to the bank, got dishonoured for the reason

that the bank account was closed and the payment was

stopped. The defence of the accused is that he had no

business transaction with the complainant. In fact, he

handed over the cheque to help Thomas Solaman (DW1)

to purchase computers. However, DW1 handed over the

cheque to the complainant, and the present complaint

was filed. The complainant does not have the means to

even raise Rs.10/- per day. Ext.P8 cheque was not issued

towards any legally enforceable debt. Hence, the

accused is entitled to the benefit of doubt and the

prosecution has to necessarily fail.

13. A negotiable instrument, which includes a

cheque, carries the presumption of consideration under

Secs.118(a) and 139 of the N.I Act. It is profitable to

extract the said relevant provisions:

"118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made;-

(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such

instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

139. Presumption in favour of holder. --It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.

14. A three-Judge Bench of the Hon'ble Supreme

Court in Rangappa vs. Sri.Mohan [2010 KHC 4325],

while dealing with Sec.139 of the N.I Act has

conceptualised the doctrine of 'reverse onus', by holding

thus:

" 18. In light of these extracts, we are in agreement with the respondent - claimant that 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 (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 specifies 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. As clarified in the citations, the 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.

(emphasis given)

15. Recently, a three-Judge Bench of the Hon'ble

Supreme Court in Kalamani Tex and Anr vs. P.

Balasubramanian [2021 (2) KHC 517] has reiterated the

above legal position and doctrine of the reverse onus. It is

apposite to extract the relevant paragraphs, which

declare the law on the point in the following terms:

"14. 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 Section 118 and Section 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. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC

243)."

(emphasis supplied)

16. In Bir Singh v Mukesh Kumar [(2019) 1 KHC

774 SC] the Hon'ble Supreme Court has observed that if

a signed blank cheque is voluntarily given to a payee

towards some payment and the payee fills up the amount

and other particulars, it will not invalidate the cheque.

The onus of proof would always be on the accused to

prove that the cheque was not issued in discharge of a

debt/liability by advancing a probable defence.

17. In the case on hand, the complainant's case is

that, Ext.P8 cheque was issued by the accused in

discharge of a legally enforceable debt and the cheque

got dishonoured when presented for collection and the

accused failed to pay the demanded amount, despite

receipt of the statutory lawyer notice.

18. The accused denied the allegation and has raised

a defence that he has no business transaction with the

complainant. Instead, Ext.P8 cheque was issued by him

to DW1 to purchase computers. It was misutilising the

cheque, the complainant filed the false complaint.

19. Ext.P14 document, which is not disputed by the

accused, would establish that the complainant, the

accused and DW1 had purchased a shop room in their

joint names. This by itself shows that there was a

business transaction between the parties. Thus, the

defence of the accused that he does not know the

complainant and had not issued Ext.P8 cheque to the

complainant can only be accepted with a pinch of salt.

20. The courts below, after a threadbare analysis of

the materials placed on record, have concurrently

concluded that the accused had failed to shift the reverse

onus of proof cast on his shoulders under Section 139 of

the N.I. Act. Accordingly, the courts below found the

accused guilty, and convicted and sentenced him for the

above offence. I do not find any error, illegality or

irregularity in the conclusion arrived at by the courts

below. Thus, I confirm the conviction imposed by the

courts below.

21. At the said point of time, the learned counsel for

the revision petitioner submitted that the revision

petitioner is now 74 years and bedridden. Therefore, this

Court may show some leniency in passing the sentence.

22. In Damodar S. Prabhu v. Sayed Babalal

H((2010)5 SCC 663) the Hon'ble Supreme Court held

that unlike other forms of crime, the punishment under

Section 138 of the N.I. Act is not a means for seeking

retribution, but is a means to ensure payment of money.

Complainant's interest lies primarily in recovering the

money rather than seeing the drawer getting

incarcerated. In an offence under Section 138 of the N.I.

Act, the compensatory aspect of the remedy should be

given priority over the punitive aspect.

23. Keeping in mind the above principles and taking

into account the fact that the revision petitioner/accused

is now 74 years and bedridden, I am of the definite view

that a lenient view as regards substantive sentence can

be taken, by sentencing the revision petitioner to undergo

imprisonment for one day(till the rising of the Court) and

pay compensation for the cheque amount, which would do

complete justice to both sides.

In the result,

(i) The revision petition is dismissed.

(ii) The conviction imposed by the courts below is

upheld.

(iii) The sentence imposed by the courts below is

modified and reduced by sentencing the revision

petitioner to undergo imprisonment for one day (till the

rising of the Court) and pay a compensation of

Rs.6,00,000/- within a period of sixty days from today

under Section 357(3) of the Code, and in default to

undergo simple imprisonment for a period of six months.

(iv) If the compensation amount is deposited, the

same shall be released to the first respondent

/complainant, in accordance with law.

(v) Needless to mention, if the revision petitioner

has already deposited any amount before the courts

below, only the balance amount need be deposited.

(vi) In case of failure of the revision petitioner to

appear before the Trial Court to undergo the sentence

and pay the compensation amount, the Trial Court shall

execute the sentence and recover the compensation

amount.

(vii) The execution of the sentence shall stand

deferred till 16.12.2023.

(viii) The Registry is directed to forthwith forward a

copy of this order to the Trial Court for compliance.

Sd/-

C.S.DIAS, JUDGE

rmm17/10/2023

APPENDIX

PETITIONER ANNEXURES

Annexures 1, 2 &3 TRUE COPIES OF THE NEWS ITEMS/REPORTS PUBLISHED IN MALAYALA MANORAMA DAILY DATED 27.8.2007 AND 29.8.2007 AS WELL AS MATHRUBHOOMY DAILY DATED 27.8.2007