Abdul Azeez v. Sulaiman & State of Kerala

Crl.R.P.Nos.798 & 799 of 2023 1 ## **`HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 CRL.REV.PET NO. 798 OF 2023 AGAINST THE JUDGMENT IN CRA 90/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI IN ST 33/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ``` ## **`TIRUR`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` ABDUL AZEEZ, AGED 63 YEARS, S/O KUNHIMUHAMMED HAJI, ONATHUKATTIL HOUSE, MARAKKARA AMSOM EARKKARA DESOM, MARAKKARA P.O., TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676553. BY ADVS. NIRMAL V NAIR M.ANEESH ENCIL K. SABU ARATHI PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:`** ``` 1SULAIMAN, AGED 51 YEARS, S/O KUNHAN KUTTY HAJI, ACHATH HOUSE, KURUMBATHUR, KURUMBATHUR P.O., TIRUR TALUK, MALAPPURAM, PIN – 676301. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` PUBLIC PROSECUTOR SRI M P PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.08.2023 ALONG WITH CRRP.NO.799/2023, THE COURT ON 17.08.2023 DELIVERED THE FOLLOWING: ``` Crl.R.P.Nos.798 & 799 of 2023 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 CRL.REV.PET NO. 799 OF 2023 AGAINST THE JUDGMENT IN CRA 89/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III IN ST 9/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ``` ## **`TIRUR`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` ABDUL AZEEZ, AGED 63 YEARS, S/O KUNHIMUHAMMED HAJI, ONATHUKATTIL HOUSE, MARAKKARA AMSOM EARKKARA DESOM, MARAKKARA P.O., TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676553. BY ADVS. NIRMAL V NAIR ENCIL K. SABU M.ANEESH ARATHI PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1SULAIMAN, AGED 51 YEARS S/O KUNHAN KUTTY HAJI, ACHATH HOUSE, KURUMBATHUR, KURUMBATHUR P.O., TIRUR TALUK, MALAPPURAM, PIN – 676301. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ``` PUBLIC PROSECUTOR SRI M P PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.08.2023 ALONG WITH CRRP.NO.798/2023, THE COURT ON 17.08.2023 DELIVERED THE FOLLOWING: ``` Crl.R.P.Nos.798 & 799 of 2023 3 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _Crl.R.P Nos.798 and 799 of 2023 ================================ Dated this the 17th day of August, 2023_ ## _**C O M M O N O R D E R**_ Crl.R.P.No.798 of 2023 has been filed under Sections 397 and 401 of the Code of Criminal Procedure challenging conviction and sentence imposed by the Judicial First Class Magistrate-II, Tirur as per judgment dated 08.07.2020 in S.T.No.33/2017 and confirmed in Crl.Appeal No.90/2020 on the files of the Additional Sessions Judge-III, Manjeri, as per judgment dated 19.05.2023. 2. Crl.R.P.No.799 of 2023 has been filed under Sections 397 and 401 of the Code of Criminal Procedure challenging conviction and sentence imposed by the Judicial First Class Tirur as dated 08.07.2020 in Magistrate-II, per judgment Crl.R.P.Nos.798 & 799 of 2023 4 S.T.No.9/2017 and confirmed in Crl.Appeal No.89/2020 on the files of the Additional Sessions Judge-III, Manjeri as per judgment dated 19.05.2023. 3. Heard the learned counsel for the revision petitioner on admission. Notice to the 1st respondent stands dispensed with. Heard the learned Public Prosecutor appearing for the 2nd respondent. 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. Facts in S.T.No.9/2017 and in CRA.No.89/2020 : The case put up by the complainant before the trial court was that the accused herein issued cheque for Rs.10 lakh dated 14.10.2014 in favour of the complainant while executing sale agreement dated 14.03.2013, agreeing to purchase the property belonged to the complainant. The further case of the complainant is that though the sale deed was executed in favour of the person Crl.R.P.Nos.798 & 799 of 2023 5 suggested by the complainant, when the cheque was presented for collection, the same was dishonoured for the reason “funds insufficient”. Though the notice of dishonour and demand was issued, the accused failed to pay the amount and accordingly the complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the `N.I Act' for easy reference), by the accused. 6. Facts in S.T.No.33/2017 and in CRA.No.90/2020 : The allegation herein is that another cheque for Rs.7,61,900/dated 14.10.2014 was issued as part of sale consideration while executing agreement for sale on 14.03.2013 and the same also got dishonoured for want of sufficient funds. Though the notice of dishonour and demand was issued, the accused failed to pay the amount and accordingly the complainant launched prosecution alleging commission of offence punishable under Section 138 of Crl.R.P.Nos.798 & 799 of 2023 6 the Negotiable Instruments Act, 1881 (hereinafter referred to as the `N.I Act' for easy reference), by the accused. 7. The trial court tried both the cases together. During trial, PW1 examined and Exts.P1 to P7(b) were marked on the side of the complainant. 8. Even though opportunity was given to the accused to adduce evidence after questioning him under Section 313(1)(b) of Cr.P.C, no defence evidence adduced. 9. Finally the learned Magistrate found that Ext.P2 cheque for Rs.10 lakh dated 14.10.2014 and Ext.P3 cheque for Rs.7,61,900/- dated 14.10.2014 were issued by the accused to the complainant for the transaction dealt in Ext.P1 agreement dated 14.03.2013. Further acting on Ext.P1 sale agreement, later the property was sold by the complainant in the name of the person nominated by the complainant. Therefore, the trial court found that the transaction as well as the execution of Exts.P2 and P3 cheques Crl.R.P.Nos.798 & 799 of 2023 7 were proved by the complainant and accordingly the trial court given benefit of twin presumptions under Section 118 and 139 of the N.I Act in favour of the complainant. 10. Accordingly, the trial court convicted and sentenced the accused in S.T.Nos.9/2017 and 33/2017 as under: _“In the result, the accused is convicted under S.255(2) Criminal Procedure Code in S.T.No.9/2017 and sentenced to suffer imprisonment till the rising of the Court and to pay compensation of Rs.10,00,000/- (Rupees Ten Lakh only) under section 357(3) of the Code of Criminal Procedure for the offence punishable under section 138 of the Negotiable Instruments Act. In default of payment of compensation, accused shall suffer Simple Imprisonment for a period of 4 months (Four Months). Accused is also convicted under S.255(2) Criminal Procedure Code in S.T.No.33/2017 and sentenced to suffer imprisonment till the rising of the Court and to pay compensation of Rs.761,900/- (Rupees Seven Lakh Sixty One thousand and Nine Hundred only) under section 357(3) of the Code of Criminal Procedure for the offence punishable under section 138 of the Negotiable Instruments Act. In default of payment of compensation, accused shall suffer Simple Imprisonment for a period of 3 months (Three Months). Compensation if realized, shall be given to the complainant.”_ 11. Though the accused challenged the common judgment in S.T.Nos.9 and 33 of 2017 before the Sessions Court, Manjeri, Crl.R.P.Nos.798 & 799 of 2023 8 vide CRA.Nos.89 and 90 of 2020, the learned Additional Sessions Judge-III, Manjeri confirmed the conviction as well as the sentence. 12. While challenging the concurrent verdicts of conviction as well as sentence, the specific case put up by the learned counsel for the accused is that Exts.P2 and P3 cheques were issued in part payment of sale consideration, on executing Ext.P1 sale agreement. But the sale deed was not executed and no evidence let in by the complainant to prove that the sale deed was executed either in the name of the accused or to a person nominated by the accused. In this regard, the learned counsel for the accused read out relevant portion of Ext.P1 agreement. On perusal of copy of Ext.P1, it could be gathered that Exts.P2 and P3 cheques were issued at the time when sale agreement was executed in between the accused and the complainant and it was covenanted in the agreement that the cheques were issued to adjust the sale consideration covered by Crl.R.P.Nos.798 & 799 of 2023 9 Ext.P1 when the complainant executes sale deed in favour of the accused or his nominee. Even though the learned counsel for the accused read out the copy of the deposition given by PW1 to contend that there is nothing in evidence to substantiate execution of the sale deed in tune with Ext.P1, in fact, evidence of PW1 would sugest execution of sale deed by the complainant in the name of the nominee of the accused. Further, the learned counsel for the accused, who cross examined PW1 before the trial court also made suggestion admitting the sale. 13. Here the courts below meticulously analysed the evidence to see the transaction which led to execution of Exts.P2 and P3 cheques in tune with execution of Ext.P1 agreement. In fact, the evidence of PW1 suggesting execution of Ext.P1 and consequential execution of sale deed in favour of the person nominated by the accused, is not shaken during cross examination in any manner. Similarly, the evidence of PW1 to the effect that Crl.R.P.Nos.798 & 799 of 2023 10 Exts.P2 an P3 cheques were issued as part of sale consideration covered by Ext.P1 and the subsequent sale deed also not shaken during cross-examination. Thereby the trial court as well as the appellate court believed the evidence of PW1, supported by Exts.P1 to P7(b), to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Exts.P2 and P3 cheques. Accordingly, the trial court and the appellate court given the benefit of presumptions under Sections 118 and 139 of the N.I Act. 14. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I. 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 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 Crl.R.P.Nos.798 & 799 of 2023 11 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 finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above. 15. In fact, the learned counsel miserably failed to Crl.R.P.Nos.798 & 799 of 2023 12 substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available at this Court. 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. 16. On evaluation of the materials available, nothing available in this case to revisit the conviction and sentence imposed by the trial court and the appellate court since the same is the least minimum possible. Considering the fact that the cheques were issued as part of sale consideration in consequence of an agreement for sale executed on 14.03.2013, I am not inclined to grant time Crl.R.P.Nos.798 & 799 of 2023 13 also to the revision petitioner. 17. In the result, these Revision Petitions fail and are accordingly dismissed with direction to the trial court to execute the sentence without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_