Anu Paul v. Poultrina Lab Pvt Ltd & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 CRL.REV.PET NO. 746 OF 2022** **AGAINST THE JUDGMENT DATED 12.09.2022 IN CRA 307/2020 OF ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA** ## **AND** **JUDGMENT DATED 16.11.2020 IN ST 1238/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** ANU PAUL,AGED 43 YEARS, S/O.PAULOSE, KAKKATTIL HOUSE, IRAPURAM VILLAGE & P.O, KOOZHOOR KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN – 683541. BY ADV JOHN T.PAUL ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** 1 M/S POULTRINA LAB PVT LTD SHOP NO.VII/157, ABCDEFFLR, PAZHOOR P.O, MANEED, KAROOR, PIRAVOM, ERNAKULAM DIST, PIN-686664 REP. BY ITS MANAGING DIRECTOR JYOTHI KRISHNAN, S/O MUKUNDAN, AGED 50 YEARS, AMBELI HOUSE AROOKUTTY, CHERTHALA, ALAPPUZHA DIST, PIN – 688535. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.746/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.746 of 2022_ ================================ _Dated this the 22[nd] day of November, 2022_ ## _**O R D E R**_ The sole accused in S.T.No.1238/2017 on the file of the Judicial First Class Magistrate Court, Piravom, who was convicted and sentenced as per judgment dated 16.11.2020, is the revision petitioner herein. He is aggrieved by the judgment of the Judicial First Class Magistrate Court, Piravom and the judgment in Crl.Appeal No.307/2020 on the file of the Additional Sessions Court, Moovattupuzha dated 12.09.2022 arising out of the same. The respondents herein are the complainant as well as the State of Kerala. 2. Parties in this Revision Petition will be referred as Crl.R.P.No.746/2022 3 `complainant' and `accused' for convenience. 3. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor during admission. Notice to the 1st respondent is dispensed with. 4. Summary of the case is as under: According to the complainant, the accused issued a cheque for Rs.6,26,667/- dated 28.04.2017 on 10.04.2017 to repay the liability incurred by the accused for purchase of poultry feed from the complainant company. When the said cheque got returned unpaid, the complainant launched prosecution alleging commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for short), when the accused failed to repay the amount within the statutory period, even after the demand notice. 5. The learned Magistrate took cognizance of the matter and after securing the presence of the accused, tried the matter. Crl.R.P.No.746/2022 4 During trial, PW1 was examined and Exts.P1 to P17 were marked on the side of the complainant and after questioning the accused under Section 313(1)(b) of Cr.P.C, DWs 1 and 2 and Exts.D1 to D3(a) were marked on the side of the accused. 6. The learned Magistrate appraised the evidence and found that Ext.P7 cheque was issued to discharge the liability to the tune of Rs.6,26,667/-, for purchase of poultry feed from the complainant. Though evidence of DW1 and DW2 and Exts.D1 to D3(a) were adduced from the side of the accused, the trial court held that, relying on the above evidence, the accused was not successful in creating any dubiousness in the case of the complainant or to rebut the presumptions. Thus the trial court found that the accused herein committed offence punishable under Section 138 of the N.I Act. He was sentenced to undergo simple imprisonment for a period of 3 months and to pay compensation of Rs.6,26,667/- and in default of payment of compensation, to undergo simple imprisonment for a period of 3 months. Crl.R.P.No.746/2022 5 7. In the appeal filed challenging the verdict of the trial court, the learned Sessions Judge re-appreciated the evidence after appraising the contentions raised by the accused and it was found that there was no reason to interfere with the finding of the trial court in the matter of conviction. But the Sessions Judge modified the sentence to imprisonment till rising of court and to pay fine of Rs.6,26,667/-. The fine amount was ordered to be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. 8. The learned counsel for the accused, who assailed the concurrent verdicts of the trial court as well as the appellate court, vehemently argued that the transaction involved herein is merely a civil dispute and the courts below failed to appreciate the evidence. It is argued that there was no seal in Ext.P6, alleged to be issued in the name of the complainant company and, therefore, Ext.P6 cannot be acted upon. 9. In fact, both courts below negatived the contention Crl.R.P.No.746/2022 6 based on evidence. Going through the grounds challenged to upset the findings, those are all matters required to be re-appreciated on the basis of evidence and the power of this Court while exercising the power of revision is not wide enough to do so. 10. 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_ Crl.R.P.No.746/2022 7 _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. ...”_ 11. 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 or of the Magistrate unless it is perverse or wholly unreasonable - 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 nonconsideration 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_ Crl.R.P.No.746/2022 8 _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.”_ 12. 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 Crl.R.P.No.746/2022 9 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. 13. In this matter, the case put up by the complainant before the trial court that Ext.P7 cheque for Rs.6,26,667/- was issued towards the price of poultry feed purchased from the complainant was established by production of Ext.D2 series documents and the attempt of the accused to substantiate that Ext.P7 had no consideration and the transaction could not be believed, were found against by the trial court as well as the appellate court after discussing the evidence of DW1 and DW2 in this regard. Though Ext.P6 and its illegality were challenged in this Revision Petition, it could be gathered from the judgments of the courts below that no challenge was raised while admitting Ext.P6 in evidence. Therefore, the said challenge at the revisional stage could not help the accused in any manner. In this matter, the case put up by the accused before the trial court was that poultry feed was purchased Crl.R.P.No.746/2022 10 from the complainant through DW2 paying money in cash. The courts below appraised the evidence of DW1 in this regard along with the evidence of DW2, the evidence of DW1 and DW2 along with Exts.D1 to D3(a) were found to be insufficient to substantiate the defence case and accordingly the courts below relied on the evidence of PW1 and Exts.P1 to P17 and found that the complainant had discharged his initial burden to prove transaction led to execution of Ext.P7 cheque. Accordingly the benefit of twin presumptions under Section 118 and 139 of the N.I Act was given to the complainant. 14. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. 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_ Crl.R.P.No.746/2022 11 _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.”_ Crl.R.P.No.746/2022 12 15. 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.”_ 16. In a latest 3 Bench decision of the Apex Court reported in [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD Crl.R.P.No.746/2022 13 527 : 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 2nd 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_ Crl.R.P.No.746/2022 14 _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.”_ 17. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption 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. 18. Thus on evaluation of the materials available within the limited power of revision available to this Court, nothing substantiated to find any illegality in the concurrent verdicts of conviction and sentence imposed by the trial court. Therefore, this Revision Petition must fail. Crl.R.P.No.746/2022 15 19. Accordingly, the Revision Petition is dismissed, granting two months' time to the revision petitioner to undergo the sentence imposed by the appellate court. Therefore, the execution of sentence shall stand deferred till 22.01.2023. The revision petitioner shall appear before the trial court on 23.01.2023 to undergo the modified sentence and to pay the fine. 19. If the revision petitioner/accused fails to appear before the trial court as directed herein above, the trial court is directed to execute the sentence without fail. Registry shall forward a copy of this order to the courts below for information. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_