Abdul Rafeeque v. Mohanakrishnan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** **Crl.Rev.Pet.No.265 OF 2020** **AGAINST THE JUDGMENT IN CRA 175/2017 DATED 27-01-2020 OF ADDITIONAL SESSIONS COURT - II, MANJERI** **AGAINST THE JUDGMENT IN ST 19/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, TIRUR** ## **PETITIONER/APPELLANT/ACCUSED:** **ABDUL RAFEEQUE AGED 47 YEARS S/O. MOHAMMED HAJI, RESIDING AT NADAKKAVIL HOUSE, KATTIPARUTHI DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676552.** **BY ADVS. SRI.P.T.SHEEJISH SRI.PRAVEEN KUMAR (PRAYAGA)** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 MOHANAKRISHNAN AGED 45 YEARS S/O. GOPALANEZHUTHACHAN, RESIDING AT KIZHAKKATHUKULAM, VADAKKUMBRAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676552.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 682031.** ## **SRI.C.K.PRASAD, PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.02.2020, THE COURT ON 03.03.2020 PASSED THE FOLLOWING:** Crl.R.P.No.265/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.265 of 2020 -----------------------------------------Dated this the 3[rd] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.19/2016 on the file of the Court of the Judicial First Class Magistrate-II, Tirur. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to imprisonment till the rising of the court and also directed him to pay an amount of Rs.4,57,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Crl.A.No.175/2017 before the Crl.R.P.No.265/2020 3 Court of Session, Manjeri challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant and the accused were acquainted with each other. They were working in a school as non-teaching staff. The accused promised the complainant that he shall obtain a job for his sister and for that purpose, he obtained an amount of Rs.4,57,000/- from the complainant on 04.07.2012. The accused could not procure any job for the sister of the complainant. Thereafter, the matter was settled between the complainant and the accused in the presence of mediators. The accused executed an agreement and promised that he would return the amount to the complainant on or before the date Crl.R.P.No.265/2020 4 30.10.2013. The accused also gave the complainant a cheque for the amount. The accused did not pay the amount even after the date 30.10.2013. The accused told the complainant that there would be sufficient amount in the bank on 27.12.2013. When the complainant presented the cheque in the bank, it was returned unpaid for the reason that there was no sufficient amount in the account of the accused. When the complainant informed the accused about it, the accused requested him to wait till the end of January, 2014. Thereafter, the complainant again presented the cheque on 06.02.2014. Then also, the cheque was dishonoured for want of sufficient funds in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P6 documents were marked on his side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence in examination-in-chief with regard to the details of the Crl.R.P.No.265/2020 5 transaction and the issuing of the cheque by the accused. 9. On cross-examination, PW1 gave evidence as follows: The accused had direct connection with the persons who were in the management of the school. The uncle of the accused was the Manager of the school and the brother of the accused was a member of the managing committee of the school. He gave Rs.4,57,000/- to the accused for procuring a job for his sister. The amount was brought by his brother-in-law and it was handed over to the accused at the school on 04.07.2012. The accused could not procure any job for his sister. Thereafter, a mediation took place. The accused executed an agreement to the effect that he would return him the amount on or before the date 30.10.2013. The accused gave him a signed blank cheque. As directed by the accused, he filled up the cheque except the date in it. Subsequently, before presenting the cheque in the bank, he put the date in the cheque as directed by the accused. 10. Learned counsel for the petitioner pointed out that, even according to the evidence of the complainant, the accused had handed over only a signed blank cheque to him. Learned Crl.R.P.No.265/2020 6 counsel would therefore contend that the accused had not executed the cheque and issued it to the complainant in discharge of any debt or liability. 11. Answer to the question, whether a signed blank cheque voluntarily given by the accused to the creditor or the complainant could be filled up by such person, is no longer res integra. In **Bir Singh v. Mukesh Kumar : AIR 2019 SC 2446** , the Supreme Court has held as follows: _“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 Section 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_ Crl.R.P.No.265/2020 7 _debt or liability by adducing evidence. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 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”._ 12. In the light of the dictum laid down by the Apex Court in **Bir Singh** (supra), the plea of the accused that there was no due execution of the cheque by him cannot be accepted. 13. In the instant case, there is no plea or evidence by the accused that a signed blank cheque was obtained from him by force. There is no plea or evidence that he had parted with such a cheque under threat or coercion. In the absence of such a plea, the evidence of the complainant that he filled up the cheque, as directed by the accused, cannot be disbelieved. Even otherwise, the complainant had the implied authority to fill up the cheque with the amount which was actually due from the accused. 14. Once the execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to Crl.R.P.No.265/2020 8 rebut the presumption. 15. The plea of the accused is that he had borrowed some amount from the accused and at that time, he had given signed blank cheques as security and that the complainant has misused one of the aforesaid cheques and filed the case. 16. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was brought out in the crossexamination of PW1 to find that the accused had borrowed money from the complainant and at that time, he had given signed blank cheque leaves as security. 17. As held in **Bir Singh** (supra), in the absence of any evidence to prove the plea of the accused with regard to the circumstances in which a blank signed cheque was given by him to the complainant, it may reasonably be presumed that the cheque was filled in by the complainant at the request of the accused and/or with his acquiescence. 18. The complainant could not produce the agreement allegedly executed by the accused. He has given evidence that the agreement was lost from his possession. The persons who Crl.R.P.No.265/2020 9 took part in the mediation were not examined by the complainant. There is no burden upon the complainant to prove the original transaction, unless the accused rebuts the presumption under Section 139 of the Act. 18. There is primarily the evidence of the complainant to explain the circumstances under which he came into possession of the cheque, admittedly drawn on a cheque leaf issued to the accused by his bank to operate his account. No contra evidence has been adduced. On broad probabilities, there is no reason to disbelieve the evidence of the complainant. The fact that the accused has not been able to rebut the presumption under Section 139 of the Act is certainly a crucial aspect while considering the acceptability of the evidence of the complainant regarding the original transaction. In such a situation, nonexamination of independent witnesses by him to prove the transaction or the mediation agreement, is of no consequence. 19. The complainant had sent the statutory notice to the accused demanding payment of the amount of the cheque. The accused had received the notice. He did not send any reply to the Crl.R.P.No.265/2020 10 notice. If as a matter of fact, if he did not owe Rs.4,57,000/- to the complainant and if he had not issued the cheque to the complainant in discharge of that liability and if the complainant had misused the signed blank cheque given in an earlier transaction, the accused would have definitely sent a reply to the statutory notice. He would not have remained silent and inactive on receiving the notice from the complainant demanding a huge amount from him. The fact that the notice of demand, though duly received and acknowledged by the accused, did not evoke any response from him is a crucial circumstance against him. The very fact that the accused failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there is merit in the complainant's version (See **Rangappa v. Mohan : AIR 2010 SC 1898** ). 20. A contention was raised by the accused before the appellate court that payment of money to obtain a job is opposed to public policy and therefore, the cheque allegedly issued by the accused to the complainant had no legal and valid consideration. This plea was rightly negatived by the appellate court by relying Crl.R.P.No.265/2020 11 upon the decisions of this Court in **Francis Mathew v. State of Kerala : 2005 (3) KLT 288** and **Saseendra Varma Raj v. State of Kerala : 2008 (3) KLT 740** . 21. However, an observation made by the appellate court cannot be ignored. The appellate court has observed that “the accused has not even entered into witness box to prove the above version”. This comment made by the appellate court is against the mandate given in Clause (b) of the proviso to Section 315 Cr.P.C. 22. It is basic criminal jurisprudence that an accused cannot be compelled to be examined as a witness. No adverse inference can be drawn against the accused merely because he has chosen to abstain from the witness box (See **Kashiram v. State of M.P : AIR 2001 SC 2902** ). The right of the accused to keep silence finds its expression in the provision contained in Section 315(1) of the Code. It is the mandate of the proviso to Section 315(1) of the Code that the failure of the accused to give evidence shall not be subject to any comment by any of the parties or the court or give rise to any presumption against Crl.R.P.No.265/2020 12 himself or any person charged together with him at the same trial. It is immaterial that, in a case, the burden is on the accused to prove a fact. No court can comment on the choice made by the accused to abstain from the witness box. Failure or omission of the accused to examine himself as a witness shall not attract any comment from the court. No adverse inference can be made against the accused on his failure to enter the witness box (See **Abdul Nazar v. Dileep Kumar : 2004 (3) KLT 264** ). 23. In **Abdul Nazar** (supra), this Court has observed as follows: _“In these circumstances, the learned Sessions Judge was obviously in error in making the comment extracted above, relating to the failure of the accused to take the witness stand. Even in a prosecution for the offence punishable under Section 138 of the N.I.Act, Section 315 Cr.P.C operates with vigour. Of course, the burden is on the accused under Section 139 of the N.I. Act to rebut the presumption against him. But no court would be justified in commenting on the failure/refusal of the accused to take the witness stand in support of the defence set up by him. It appears to be necessary to caution the Courts on_ Crl.R.P.No.265/2020 13 _this aspect as it is often found that comments do creep into judgments against the inability/failure of the accused to examine himself as witness. There can be no doubt on the question. The accused need not examine himself as a witness. .... His omission or failure or refusal to examine himself cannot he the subject matter of any comment or justify any presumption or finding against him. The incorrect impression deserves to be dispelled at the earliest”._ 24. Except to the above extent, I find no illegality, impropriety or perversity in the appreciation of evidence and the concurrent findings entered against the petitioner by the courts below. 25. The courts below have appreciated the evidence and made concurrent findings. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to Crl.R.P.No.265/2020 14 act as an appellate court. 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 glaringly 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 26. The trial court has imposed on the petitioner/accused only a sentence of imprisonment till the rising of the court with a direction to pay the amount of the cheque as compensation to the complainant. The trial court has shown maximum leniency in awarding sentence on the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on him. 27. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 138 of the Crl.R.P.No.265/2020 15 Act, which stands affirmed by the appellate court, is confirmed. However, the petitioner/accused is granted a period of six months from today to pay the amount of compensation to the complainant and satisfy the trial court about such payment. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr**