Avinash and Ushas v. M/S Oil India Enterprises and State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 23[RD] DAY OF AUGUST 2023 / 1ST BHADRA, 1945 ``` ## _`CRL.REV.PET NO. 835 OF 2023`_ ``` AGAINST THE ORDER/JUDGMENT CRA 210/2021 OF ADDITIONAL DISTRICT COURT, ``` ``` KOZHIKODE / I ADDITIONAL MACT, KOZHIKODE ``` ``` ST 4/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS IX, KOZHIKODE ``` ## _`REVISION PETITIONER/S:`_ ``` AVINASH AGED 38 YEARS USHAS, MUTHIYANGA P.O, PUTHIYAKUNNU VIA, KANNUR, PIN - 670691 BY ADVS. P.JERIL BABU SRINATH GIRISH V.NAMITHA PRASUDHA.S ``` ## _`RESPONDENT/S:`_ ``` 1M/S. OIL INDIA ENTERPRISES 38/233B, LANS NAIK SREEJITH ROAD, CHUNGAM, WEST HILL P.O, KOZHIKODE. REP. BY ITS MANAGING PARTNER, BIJU. B. NATH. E, S/O BABU SURENDRAN, PIN - 673005 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## _`OTHER PRESENT:`_ ``` SR PP P G MANU ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..2.. ``` ## **O R D E R** **Dated this the 23[rd] day of August, 2023** This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure. The revision petitioner is the sole accused in S.T.No. 04/2017 on the files of the Judicial First Class Magistrate’s Court-IX, Kozhikode. The revision petitioner impugns judgment dated 29.04.2023 in the above case, 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) and sentenced to undergo simple imprisonment till raising of the court and to pay a fine of Rs.60,836/-. In default of payment of fine, to undergo simple imprisonment for a period of 2 months also was imposed. The revision petitioner also impugns judgment dated 29.04.2023 in ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..3.. ``` Crl.Appeal No.210/2021 on the files of the Additional Sessions Court Kozhikode whereby the learned Additional Sessions Judge confirmed the conviction as well as the sentence. 2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State. Notice to the complainant (1[st] respondent) stands dispensed with. 4. The gist of the prosecution allegation is that the accused borrowed Rs.60,836/- from the complainant on 2 occasions for his business purpose and in discharge of the said liability, the accused issued cheque dated 15.03.2016 for the said sum. When the cheque was presented for collection, the same got dishonoured for want of funds. Thereafter notice of dishonour was caused and payment was ``` Crl.Rev.Pet No.835 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** demanded by the complainant, but the accused did not make the payment. Thus the complainant launched prosecution under Section 138 of the N.I Act. 5. The trial court tried the matter. During trial, PW1 examined and Exts.P1 to P7 were marked on the side of the complainant. 6. When opportunity was given to the accused after questioning him under Section 313(1)(b) of Cr.P.C, the accused did not adduce defence evidence. 7. After appreciation of the evidence, the trial court convicted and sentenced the accused as above and the appellate court also concurred the said finding. 8. The learned counsel for the revision petitioner submitted that the concurrent findings of conviction as well as sentence entered into by the trial court as well as the appellate court are based on wrong appreciation of facts and ``` Crl.Rev.Pet No.835 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** evidence. It is also submitted that there is no business transaction between the complainant and the accused and the accused was forced to issued three blank signed cheques and one stamp paper as security during 2013/2014, when he appeared before the complainant's firm, for a job. It is also submitted that Ext.P2 account statement also is incorrect and therefore, the courts below went wrong in convicting and sentencing the accused. 9. On perusal of the judgment of the trial court as well as the appellate court, it could be gathered that the complainant is a partnership firm by name M/S Oil India Enterprises and Ext.P1 partnership deed would substantiate the same. The case of the complainant is that the accused was running business at Pattiyam, by name Anugraha Agencies and the complainant supplied lubricants and greece to the accused and amount covered by Ext.P3 cheque ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..6.. ``` is the amount due to the complainant from the accused, as evident from Ext.P2 statement of account, in the above business deal. PW1 given evidence in support of the said business deal and consequential issuance of Ext.P3 cheque for a sum of Rs.60,836/- and also tendered Ext.P2, statement of accounts showing the said transaction. The evidence of PW1 not shaken in any manner, during crossexamination and no evidence let in by the accused to rebut the presumptions. The accused also failed to establish his case that he had issued three blank cheques, In fact the trial court and the appellate court relied on the evidence of PW1 supported by Exts.P1 to P7 hold that the complainant discharged his initial burden in the matter of transaction and execution of Ext. P3 cheque and thereby the benefit of twin presumptions under Sections 139 of the NI Act was given to the complainant. ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..7.. ``` 10. No doubt, law regarding presumption is well settled. 11. 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 available to a presumption 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 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_ ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..8.. ``` _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.”_ 12. 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 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_ ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..9.. ``` _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 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.”_ 13. 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 presumptions ``` Crl.Rev.Pet No.835 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 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. 14. 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. 15. Coming to the facts of this case, in fact nothing substantiated to revisit the concurrent finding of conviction as well as the sentence imposed by the courts below and the power of revision available to this court is very limited. 16. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397, which is not wide and exhaustive to reappreciate the evidence to have a contra finding. In the ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..11.. ``` 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 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. …”_ 17. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], _**Sanjaysinh Ramrao Chavan v.**_ ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..12.. ``` _**Dattatray Gulabrao Phalke**_ , the Apex Court held that the High Court in exercise of revisional jurisdiction 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 non-consideration 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 capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 18. The said ratio has been followed in a latest decision ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..13.. ``` 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 reappreciate 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 or fundamental violation of the principle of law, then only the power of revision would be made available. 19. In view of the discussions, there is no reason to ``` Crl.Rev.Pet No.835 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** interfere with the concurrent verdicts entered into by the trial court as well as the appellate court. Similarly, the appellate court rightly modified the substantive sentence confining the same to the minimum, that is simple imprisonment till rising of the court and to pay fine of Rs.60,836/- as compensation under Section 357(1)(b) Cr.P.C and in default of payment of the fine, to undergo simple imprisonment for a period of two months. Therefore, the sentence also does not require any interference at the hands of this Court. 20. In the result, the revision petition fails. Accordingly, the Revision Petition is dismissed by granting three months' time to the revision petitioner, as requested by the learned counsel for the revision petitioner, to pay the fine and to undergo the sentence imposed by the appellate court. Therefore, the execution ``` Crl.Rev.Pet No.835 of 2023 ``` ``` ..15.. ``` of sentence shall stand deferred till 22.11.2023. The revision petitioner shall appear before the trial court at 11.00 am on 23.11.2023 to pay the fine and to undergo the sentence. If the revision petitioner/accused fails to appear before the trial court, as directed, the trial court is directed to execute the sentence without fail. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```