Ayisha v. State of Kerala and Pushpa @ Malathi

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 CRL.REV.PET NO. 24 OF 2023 CRL.A.NO.130/2019 OF SESSIONS COURT, PALAKKAD ST.NO.5/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, ``` ## **`OTTAPPALAM`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` AYISHA AGED 45 YEARS W/O. LATE SAINUDEEN, ATHAMANAKATH HOUSE, P.O. VANIYAMKULAM, OTTAPALAM TALUK, PALAKKAD DIST., PIN - 679522 BY ADVS. P.JAYARAM K.R.PAUL ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PIN - 682031 2PUSHPA @ MALATHI AGED 45 YEARS D/O. VASU, KIZHAKKETHIL VEETTIL, P.O. VANIYAMKULAM, OTTAPALAM TALUK, PALAKKAD DISTRICT PIN -679522. R1 BY PP-SRI.SANAL P. RAJ ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P.No.24 of 2023 2 ## A.BADHARUDEEN, J. ## ----------------------------------------Crl.R.P.No.24 of 2023 ------------------------------------------ ## Dated this the 24[th] day of January, 2023 ## O R D E R This revision has been filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C’ hereinafter), and the revision petitioner herein is the sole accused in S.T.No.5/2018 on the files of the Judicial First Class Magistrate Court - II, Ottapalam. The revision petiitoner assails judgment in the above case, dated 30.5.2019 and judgment in Crl.Appeal No.130/2019, dated 23.7.2022. 2. The respondents herein are State of Kerala as well as the original complainant. 3. Heard the learned counsel for the revision petitioner on admission and also the learned Public Prosecutor. Notice to the second respondent stands dispensed with. 4. I shall refer the parties as ‘complainant’ and ‘accused’, for convenience. Crl.R.P.No.24 of 2023 3 Short facts of the case: Purusant to dishonour of cheque for Rs.3,00,000/- (Rupees Three Lakh only), dated 29.11.2013, the complainant initiated prosecution against the accused, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for short). 5. The court below secured the presence of the accused for trial and recorded evidence. The evidence confined to that of PW1 and PW2 and Exts.P1 to P13 on the side of the complainant. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence. But, no defence evidence adduced. 6. The trial court appreciated the evidence based on arguments tendered by both sides and finally convicted the accused 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 a compensation of Rs.3,00,000/- (Rupees Three Lakh only) was ordrered to be paid to the complainant under Section 357(3) of Cr.P.C. In default of payment of compensation, simple imprisonment for a period of one month also was imposed. The accused challenged the order of trial court before the Sessions Crl.R.P.No.24 of 2023 4 Judge, Palakkad in Crl.Appeal No.130/2019. As per judgment, dated 23.7.2022, the learned Sessions Judge re-appreciated the evidence and concurred with the conviction, by modifying sentence for a day till rising of the court and imposed three months default imprisonment on failure to pay compensation to the tune of Rs.3,00,000/- (Rupees Three Lakh only). 7. While assailing the concurrent verdicts of conviction as well as the modified sentence, the learned counsel for the accused reiterated the contention raised before the trial court as well as the appellate court and submitted that, on getting demand notice itself, the accused sent reply, taking a consistant case that Ext.P1 cheque was not issued in discharge of any legally enforceable debt and the cheque was issued when the accused borrowed an amount of Rs.50,000/- from the complainant. Further, the said liability was fully discharged on 14.7.2013, after borrowing the said sum from one Vellarampara Ammini. But, at the time of discharge, the accused demanded Rs.5,000/- more to return her signed blank cheque and retained the cheque. The further case was that, the said cheque was misused for the purpose of foisting this case. It is argued that, Ext.P11, the document justifying the transaction alleged in the complaint, led to issuance of Ext.P1 cheque also, is a concocted document, though he failed to point out any reasons to substantiate the said contention. Crl.R.P.No.24 of 2023 5 But, the courts below failed to appreciate the evidence raised by the accused, to hold that the accused well rebutted the presumptions. On this premise, the learned counsel pressed for interference in the conviction and sentence to record acquittal of the accused. 8. The courts below given emphasise to the evidence of PW1, supported by the evidence of PW2, the Bank Manager, to the effect that a loan to the tune of Rs.3,94,494/- was granted to the complainant and Ext.P10 account statment also produced, to substantiate the same. 9. When the learned counsel was asked to justify the repayment of the admitted liability to the tune of Rs.50,000/- on 14.7.2013 and the liability is to the tune of Rs.50,000/- alone, as contended with the aid of supporting evidence available, the learned counsel failed to give proper explanation or even failed to suggest any weak piece of evidence in this regard, that too, without getting back the security document/cheque. It is relevant to note that the accused admitted borrowing of Rs.50,000/- and the consequential discharge of the said liability. At the same time, the accused would contend that the security documents were retained by the complainant demanding Rs.5,000/- more. If this is the case, normal prudence would tempt to think that the accused would very well retain the amount and to effect the repayment only Crl.R.P.No.24 of 2023 6 after getting the security document/cheque, if there was a discharge, as contended. In fact, the discharge plea at the instance of the accused, is not supported by any evidence. 10. Similarly, the learned counsel for the accused would contend that Ext.P11 is a concocted document. It is interesting to see that though this contention was raised, the appellant court found that decree and judgment were passed on the basis of Ext.P11, on proving its authenticity and genuineness. Therefore, the appellate court rightly negatived this contention. 11. 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 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. 12. As I have already pointed out, in this case, the evidence of PW1, supported by PW2 and Exts.P1 to P13, categorically established the Crl.R.P.No.24 of 2023 7 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. 13. 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 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 Crl.R.P.No.24 of 2023 8 the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above. 14. It is relevant to refer a latest decision of the Apex Court reported in [2022(5) KHC 560(SC)], Oriental Bank of Commerce v. Prabodh Kumar Tewari , whereas it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 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 one months time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 22.2.2023 and the accused is directed to appear before the trial court on 23.2.2023, either to pay the fine amount or to undergo the default sentence. In default to do so, the trial court is directed to execute the sentence as Crl.R.P.No.24 of 2023 9 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 //TRUE COPY// PA TO JUDGE JUDGE Bb **==> picture [320 x 43] intentionally omitted <==**