Ashy Mathew v. Indu Sasikumar and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022/25TH KARTHIKA,** ## **1944** **CRL.REV.PET NO.741 OF 2022** **AGAINST THE ORDER/JUDGMENT IN ST 456/2016 OF CHIEF JUDICIAL MAGISTRATE, KOTTAYAM CRA 61/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOTTAYAM / III ADDITIONAL MACT, KOTTAYAM** ## **PETITIONER/APPELLANT/2ND ACCUSED:** ASHY MATHEW, AGED 52 YEARS, S/O.MATHEW P.SCARIAH, MANAGING PARTNER, ALLIANZ FINANCIAL CORPORATION, IGLOO TOWER, WEST TEMPLE ROAD, KOTTAYAM, PIN – 686001. BY ADV. K.SEENA ## **RESPONDENTS/RESPONDENTS & COMPLAINANT:** 1 INDU SASIKUMAR, AGED 63 YEARS, WIFE OF SASIKUMAR, SANAL BHAVAN, MOOLAVATTOM.P.O, NATTAKOM, KOTTAYAM, PIN – 686012. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.R.P.No.741 of 2022** 2 ## **O R D E R** ## **Dated this the 16[th] day of November, 2022** This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the 2[nd] accused in S.T. No.456/2016 on the file of the Chief Judicial Magistrate Court, Kottayam, arraying the original complainant as the 2[nd] respondent and State of Kerala as the 1[st] respondent. 2. The revision petitioner impugns judgment in S.T.No.456/2017 dated 27.02.2019 on the file of the Chief Judicial Magistrate Court, Kottayam and the judgment in Criminal Appeal No.61/2019 dated 26.10.2021 on the file of the Additional Sessions Judge-V, Kottayam arising therefrom. 3. Heard the learned counsel for the ## **Crl.R.P.No.741 of 2022** 3 revision petitioner as well as the learned Public Prosecutor on admission. Notice to the 2[nd] respondent stands dispensed with. 4. I shall refer the parties in this revision as 'complainant' and 'accused' for easy reference. 5. Bereft of unnecessary details, the case advanced by the complainant before the trial court was that the 1[st] accused, a Firm received Rs.10,55,000/- through its Managing Director, the 2[nd] accused, for and on behalf of the 1[st] accused agreeing to repay the same with interest at the rate of 18% per annum. In repayment of the said amount, cheque for the said sum was issued and the same was dishonoured for want of funds. Accordingly, the complainant launched prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short). 6. The trial court proceeded with trial. ## **Crl.R.P.No.741 of 2022** 4 During trial, PW1 was examined and Exts.P1 to P6 were marked. 7. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, DW1 was examined and Ext.X1 marked on the side of the accused. 8. The trial court ventured the matter and the 2[nd] accused was convicted for the offence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.12,00,000/- (Rupees Twelve Lakh Only). The fine was ordered to be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. It was ordered further that in case of default in payment of fine, the accused would undergo simple imprisonment for a further period of three months. ## **Crl.R.P.No.741 of 2022** 5 9. The judgment in S.T.No.456/2016 dated 27.02.2019 was challenged before the Additional Sessions Judge-V, Kottayam. The learned Sessions Judge also confirmed the said conviction and sentence as per judgment dated 26.10.2021 in Crl.Appeal No.61/2019. 10. The concurrent verdicts entered into by the trial court as well as by the appellate court are under challenge in this revision petition. While impeaching the veracity of the concurrent verdicts of the trial court, it is submitted by the learned counsel for the 2[nd] accused that the name of the Firm is wrongly shown though the cheque was issued from the account of a proprietary concern by name M/s.Allianz Finance. In fact, this contention was considered by the trial court as well as the appellate court and it was held that the 2[nd] accused, who admittedly the Managing Director of M/s.Allianz Financial Corporation and Proprietor of M/s.Allianz Finance as shown ## **Crl.R.P.No.741 of 2022** 6 in Ext.X1 and Ext.P6, had issued Ext.P1 cheque for and on behalf of M/s.Alliaz Financial Corporation to a layman and, accordingly, the liability of the 2[nd] accused from penal consequences cannot be absolved. In paragraph No.20 of the judgment of the trial court, it has been observed as under: _20. As held by Hon'ble High Court in Bhasi B.S. Vs. Dr.M.Keshavan Kutty and Others (2017 (5) KHC 672), a proprietary concern is not a legal entity distinct from its proprietor. A proprietary concern is nothing but an individual trading under a trade name. If so, even if the cheque drawn on the account of the proprietary concern has been issued by the proprietor for repayment of his personal liability, the proprietor can be proceeded against without making the firm a party in the proceedings. (see also: Shishan M.A. Vs. M.K.Murali and another (2016 (5) KHC 810). The Ext.P1 cheque can be treated as a cheque drawn on the account maintained by the 2[nd] accused Ashy Mathew._ 11. In this case, the courts below relied on the evidence of PW1 and Exts.P1 to P7 to hold that the complainant proved the **Crl.R.P.No.741 of 2022** **==> picture [7 x 9] intentionally omitted <==** transaction led to execution of Ext.P1. Both courts below found that nothing extracted during cross-examination of PW1 to disbelieve his version in any manner. 12. In this matter, this Court is exercising power of revision and the power of revision is not available to appreciate or reappreciate to have a contra-finding. 13. 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_ **Crl.R.P.No.741 of 2022** 8 _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 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. ...”_ **==> picture [372 x 13] intentionally omitted <==** **==> picture [408 x 12] intentionally omitted <==** ## _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao**_ _**Phalke**_ , the Apex Court held that the High Court in exercise of revisional jurisdiction ## **Crl.R.P.No.741 of 2022** 9 shall not interfere with the order of the Magistrate unless it is perverse or wholly - unreasonable or 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 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_ **Crl.R.P.No.741 of 2022** 10 _capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 15. 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 justice. To put it otherwise, if there is nonconsideration of any relevant materials, which ## **Crl.R.P.No.741 of 2022** 11 would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 16. In this matter, the courts below given benefit of presumptions under Sections 118 and 139 of NI Act in favour of the complainant, on the finding that the evidence of PW1 in the matter of transaction led to execution of the cheque is believable to discharge the initial burden cast up on the complainant. 17. Regarding law on presumptions, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v.**_ _**Sri Mohan**_ . In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution under Section 138 of the NI 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 extent, the impugned observations in_ **Crl.R.P.No.741 of 2022** 12 _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_ **Crl.R.P.No.741 of 2022** 13 _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.”_ 18. 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: **==> picture [273 x 11] intentionally omitted <==** _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_ 14 ## **Crl.R.P.No.741 of 2022** _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.”_ 19. In a latest 3 Bench decision of the Apex Court reported in [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**_ the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the NI Act it was held as **Crl.R.P.No.741 of 2022** 15 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 2[nd] 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_ **Crl.R.P.No.741 of 2022** ## 16 _(1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 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.”_ **==> picture [372 x 13] intentionally omitted <==** that when the complainant discharges the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the NI 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. **==> picture [372 x 13] intentionally omitted <==** well as the appellate court correctly appreciated the evidence and came to the ## **Crl.R.P.No.741 of 2022** 17 conclusion that the evidence available established commission of offence punishable under Section 138 of NI Act by the accused and, accordingly, the accused was convicted. In fact, there is no reason to revisit the concurrent verdicts of conviction. 22. However, in the matter of sentence, it is to be noted that the trial court imposed imprisonment for a period of three months and to pay a fine of Rs.12 lakh. The appellate court also confirmed the sentence. Therefore, as rightly argued by the accused/revision petitioner, the sentence requires modification. Therefore, I am inclined to modify the sentence. In the result, this revision is allowed in part, as under: _i. The concurrent verdicts of conviction stands confirmed. ii. The sentence is modified. Thereby the 2[nd] accused is sentenced to undergo simple imprisonment for a_ **Crl.R.P.No.741 of 2022** **==> picture [13 x 9] intentionally omitted <==** _day till rising of the court and to pay fine of Rs.12,00,000/- (Rupees Ten lakh only) for the offence punishable under Section 138 of the NI Act._ - _iii. In default of payment of fine, the 2[nd] accused shall undergo simple imprisonment for a period of four months._ - _iv. The fine amount is ordered to be given as compensation under Section 357(1)(b) of Code of Criminal Procedure._ - _v. Acting on the request of the learned counsel for the revision petitioner, three months' time from today is granted to undergo the sentence and to pay the fine._ - _vi_ . _The accused is directed to appear before the trial court on 15.02.2023 before the trial court to undergo the sentence and to pay the fine._ _vii. Execution of the sentence shall deferred till 14.02.2023._ - _viii. If the 2[nd] accused fails to appear before the trial court as directed, the trial court is directed to execute the sentence as per law, without fail._ ## **Crl.R.P.No.741 of 2022** **==> picture [13 x 9] intentionally omitted <==** Registry is directed to forward a copy of this order to the Chief Judicial Magistrate Court, Kottayam, for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 20 ## **Crl.R.P.No.741 of 2022** ## **APPENDIX OF CRL.REV.PET 741/2022** PETITIONER'S ANNEXURES: ANNEXURE 2 CERTIFIED COPY OF JUDGMENT IN ST NO.456 OF 2016 OF HONOURABLE CHIEF JUDICIAL MAGISTRATE,KOTTAYAM DATED 27.02.2016.