Ameer v. State of Kerala and Shamsudheen

1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945 CRL.REV.PET NO. 372 OF 2022 ``` ``` AGAINST THE JUDGMENT IN 21.12.2018 IN ST 50/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, OTTAPPALAM CRA 15/2019 OF ADDITIONAL DISTRICT COURT (ADHOC) III, ``` ## **`PALAKKAD`** ## **`REVISION PETITIONER/ACCUSED:`** ``` AMEER AGED 40 YEARS S/O MADATHI PARAMB ALAVI, PANNIYAMKURUSSI DESOM, CHERPULASSERY AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679503. BY ADVS. THAREEQ ANVER K. P.K.MOHANAN(PALAKKAD) K.SALMA JENNATH ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 2SHAMSUDHEEN AGED 46 YEARS S/O KARIKKUMPURATH LATE MUHAMMED, PARAL AMSOM AND DESOM, PERITHALMANNA TALUK, (POST) AALIPARAMBU, MALAPPURAM DISTRICT, PIN – 679357. BY ADVS. PUBLIC PROSECUTOR SRI M.P.PRASANTH FOR R2 JAYARAJ M ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.07.2023, THE COURT ON 07.08.2023 DELIVERED THE FOLLOWING: ``` ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.372 of 2022_ ================================ _Dated this the 7[th] day of August, 2023_ ## _**O R D E R**_ The revision petitioner, who is the sole accused in S.T.No.50/2018 on the file of the Judicial First Class Magistrate, Muvattupuzha, has filed this Revision Petition under Sections 397 and 401 of the Code of Criminal Procedure. The revision petitioner impugns judgment dated 21.12.2018 in the above case and judgment dated 31.12.2021 in Crl.A.No.15/2019 of the III Additional Sessions Judge, Palakkad, whereby the revision petitioner was found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the `N.I Act' for easy reference). Crl.R.P.No.372/2022 3 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor appearing for the 1st respondent. Notice to the 2nd respondent dispensed with. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 4. Complainant's case in brief: The specific case put up by the complainant before the trial court was that the accused, who is a building contractor having B class licence, approached the complainant, who had been running `KPM Sanitary Wares and Electricals' and requested for a loan of Rs.2,50,000/- for completion of contract work in relation to Vellinezhi Higher Secondary School. Accordingly, accused borrowed a sum of Rs.2,50,000/- and in repayment of the said sum, cheque dated 12.05.2013 was issued to the complainant. Thereafter the complainant presented the cheque for collection, but the same was dishonoured for want of funds. Accordingly, the complainant issued lawyer notice to pay the said amount, but the notice was returned unclaimed. Since the accused did not make the payment within the stipulated period, the complainant launched prosecution, alleging commission of offence punishable under Section 138 of the Crl.R.P.No.372/2022 4 N.I Act by the accused. 5. The trial court tried the matter. During trial, PW1 examined and Exts.P1 to P8 were marked on the side of the complainant. 6. When opportunity was given to the accused to adduce evidence under Section 313(1)(b) of Cr.P.C, no defence evidence adduced. 7. After appreciation of the evidence, the trial court found that the accused is guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo simple imprisonment for a period of six months and to pay compensation of Rs.2,50,000/- and in default of payment of compensation, simple imprisonment for a further period of one month. The accused challenged the verdict of trial court before the Sessions Court, Palakkad and the learned Sessions Judge reappreciated the evidence and confirmed the conviction and modified the sentence as imprisonment till rising of court and the accused was directed to pay compensation of Rs.2,50,000/- u/s.357(1) Cr.P.C to the complainant and in default of payment of compensation, the accused shall undergo Crl.R.P.No.372/2022 5 simple imprisonment for three months. The accused was directed to appear before the trial court on 11.02.2022 to receive the sentence. 8. Now the accused is before this Court by filing this revision petition assailing the concurrent verdicts. While challenging the concurrent verdicts, the learned counsel for the accused argued that the transaction as well as the execution of the cheque were not proved. Further it is argued that no legal notice was issued since the notice issued to the accused was returned with the endorsement `unclaimed'. 9. Regarding notice, the trial court considered the said contention based on the endorsement in Ext.P3, where it was endorsed that the accused `to go to Pune' and accordingly the notice was returned unclaimed. At the same time, the learned Magistrate appraised the fact that the accused had no case that the address shown in Ext.P3 Notice was incorrect. In fact, the legal position regarding issuance of notice under Section 138(b) of the N.I Act is no more . _res integra_ The Apex Court considered the relevant provisions of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 in the decision reported in [2007 (2) KHC 932 : 2007 (2) KLD 148 : ILR 2007 (3) Ker. 203 : 2007 (6) Crl.R.P.No.372/2022 6 SCC 555 : JT 2007 (7) SC 498 : 2007 (3) KLT 77 : 2007 (3) KLJ 81 : 2007 CriLJ 3214 : 2007 (3) SCC (Cri) 236 : 2007 (2) Guj LH 512 : 2008 (1) MPLJ 441 : 2008 (1) Mah LJ 44], _**C.C.Alavi Haji v. Palapetty Muhammed & anr.**_ and held as under: _“Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement `refused' or `not available in the house' or `house locked' or `shop closed' or `addressee not in station', due service has to be presumed.”_ 10. Thus the law regarding issuance of notice is no more _res-_ _integra_ . Since Section 27 gives a presumption that service of notice has been effected when it is sent in correct address by registered post. If such a notice is returned for any reason without accepting the same, then service of notice is implied. In the instant case notice was admittedly issued in the correct address of the accused and in turn the same returned as `unclaimed'. Therefore the courts below rightly held that there is proper demand notice in this case. Crl.R.P.No.372/2022 7 11. In order to prove the transaction as well as the execution of the cheque, the evidence of PW1 was relied on by the trial court, as well as the appellate court, where the accused raised a contention that the accused borrowed a sum of Rs.1,50,000/-about 3 years back and he had issued a blank signed cheque when the said amount was borrowed as security and it was misused for the purpose of filing this prosecution. It is pertinent to note that the accused has no case that he had discharged the liability so admitted. Whereas the evidence of PW1 would go to show that the accused borrowed the amount and in repayment of the said sum, he had issued Ext.P1 cheque and the same in turn was dishonoured when it was presented for collection. Thus the trial court as well as the appellate court rightly given emphasis to the version of PW1, in support of Exts.P1 to P8 to hold that the accused borrowed the said sum from the complainant and issued Ext.P1. 12. In fact, the learned counsel miserably failed to 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 Crl.R.P.No.372/2022 8 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. 13. As I have already pointed out, in this case, the evidence of PW1 to PW 17 and Exts.D1 to D3, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly. 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 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 Crl.R.P.No.372/2022 9 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. For the above reasons, this revision petition must fail and is accordingly, dismissed. Since the transaction is of the year 2013, I am inclined to grant two months time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 05.10.2023 and the accused is directed to appear before the trial court on 06.10.2023, either to pay the fine amount or to undergo the default sentence. 16. In default to do so, the trial court is directed to execute the Crl.R.P.No.372/2022 10 sentence as per law 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/_