B. Francis v. M.K. Abraham and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935** ## **Crl.Rev.Pet.No. 795 of 2009 ( )** **---------------------------------------** **AGAINST THE JUDGMENT IN CRL..APPEAL NO. 685/2005 of ADDITIONAL SESSIONS COURT (SPL), KOTTAYAM DATED 27-06-2007** **AGAINST THE JUDGMENT IN CC NO.893/2003 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT -I, KOTTAYAM DATED 09-11-2005** **REVISION PETITIONER/APPELLANT/ACCUSED:** **-------------------------------------------------------------------** **B.FRANCIS, MANTHRIKAM VILLA, PAMPADY P.O., KOTTAYAM DIST.** **BY ADVS.SRI.JACOB E SIMON SRI.DEVAPRASANTH.P.J.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **----------------------------------------------------------------** **1. M.K. ABRAHAM, MUNDAMPUZHA HOUSE, PUTHUPALLY P.O., KOTTAYAM DISTRICT.** **2. THE STATE OF KERALA, RERESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.TITUS MANI SRI.S.SURAJ (PALATHANATHU) R2 BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **K. HARILAL, J. -------------------Crl.R.P. No. 795 of 2009** **------------------------------Dated this the 3[rd] day of December, 2013** ## **ORDER** The revision petitioner is the accused in C.C.No.893 of 2003 on the files of the Judicial First Class Magistrate’s Court-I, Kottayam as well as the appellant in the Crl.Appeal No.685 of 2005 on the files of the Additional Sessions Judge (Special), Kottayam. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short the N.I. Act) on a complaint filed by the first respondent herein. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.50,000/- and in default of which to undergo simple imprisonment for one month. Feeling aggrieved, though he had preferred the above Crl.R.P. No. 795 of 2009 2 Crl.Appeal, the appellate court also, after re-appreciating the entire evidence on record, confirmed the verdict of guilty but modified the substantive sentence of simple imprisonment for three months to simple imprisonment for one day till rising of the court and maintained the rest of the sentence as such without any interference. This Crl.R.P. is filed against the concurrent findings of conviction and modified sentence on various grounds. 2. It is the case of the complainant that the complainant is conducting leather business and the accused had purchased leather from him worth Rs.2,50,000/- and for the part payment of the said amount, the accused issued a cheque for Rs.50,000/dated 01.07.2003 in favour of the complainant. When the cheque was presented for collection, the same was dishonoured and returned due to insufficiency of funds in the account of the accused. Though he caused to issue a lawyer’s notice, he did not send a reply denying the demand made by the notice nor did he pay off the cheque Crl.R.P. No. 795 of 2009 3 amount. Thus accused had committed the offence alleged against him. 3. The learned counsel for the revision petitioner contends that the court below miserably failed to appreciate the facts and evidence in its correct perspective. The complainant has not discharged his initial burden of proving execution and issuance of the cheque in discharge of a legally enforceable debt. Lodging of complaints one after another, consecutively shows that there is no possibility to issue those cheques in discharge of a legally enforceable debt. The accused successfully rebutted the presumption under section 139 and 118 (a) of the N.I.Act. The accused had some business transactions with the complaint and as a security for that he had issued four cheque leaves to him. But the court below failed to appreciate the evidence of DW1 which would probabilise the defence version and improbabilise the case of the complainant. These are the arguments advanced by the learned counsel for the Crl.R.P. No. 795 of 2009 4 revision petitioner. 4. Per contra, the learned counsel for the complainant advanced arguments to justify the impugned judgment under challenge. The learned counsel submits that the complainant has successfully discharged the initial burden of proving the execution and issuance of the cheque; but the accused miserably failed to discharge the presumption under Section 118 (a) and 139 of he N.I.Act. The learned counsel further drew my attention to the pleadings of the case which itself shows that the total amount due from the accused to the complainant was Rs. 2,50,000/- and the cheques were issued as part payment towards the lumpsum amount of Rs.2,50,000/- due to the complainant. 5. Going by the impugned judgment it could be seen that to prove the execution and issuance of the cheque the complainant was examined as PW1 and Exts.P1 to P6 were marked. But no evidence either oral or documentary was forthcoming from the accused in defence. The Crl.R.P. No. 795 of 2009 5 specific case of the complainant is that the complainant is conducting leather business and he has some business transactions of selling the leather to the accused and in that transaction a total sum of Rs. 2,50,000/- was due to him. In discharge of that lumpsum amount, as part payment the accused issued a cheque for Rs.50,000/- and the same was got dishonoured for want of sufficient funds. He has given evidence in terms with averments in the complaint and the courts below held that he has succeed in discharging the initial burden of proving execution and issuance of the cheque. 6. Coming to the rebuttal evidence, it is the specific case of the accused that as averred by the complainant, he had business transaction with the complainant and he used to purchase leather from the complainant. Thus the basis of the transaction stands admitted by both parties. 7. In defence when the accused was examined as DW1, the case of the accused is that as purchase price of four loads, he had issued four undated cheque leaves Crl.R.P. No. 795 of 2009 6 for an amount of Rs.1,50,000/- to the complainant as a security and when the 1[st] load of leather was delivered it was found that the quality of the material was below the agreed quality. consequently, he sent back the said load. Thus no purchase was effected in consideration of the four cheques which he had hand over to the complainant. Ext.P1 cheque is one among the four cheques which he had issued for Rs.1,50,000/- and the same was issued as a blank signed cheque without mentioning the date. Though the transaction was ended in failure, the complainant presented the cheque for collection, got returned for want of sufficient funds and instituted prosecution misusing the said cheques. In short, the contention is that the cheque is devoid of consideration as provided under sections 118(a) of the N.I.Act. Thus the execution and issuance of the cheque also stands proved. But the case is that those cheques subsequently became devoid of consideration by the rejection of the materials supplied by them. Thus even going by the defence plea Crl.R.P. No. 795 of 2009 7 the accused himself admitted that at the time of issuing the cheque, the cheque had consideration as shown in those cheques. subsequently, it became devoid of consideration by the rejection of the materials supplied by the complainant. In evidence, in support of the defence contention, he deposed that immediately after the rejection of the materials supplied by the complainant he withdrew all the amount from his account and now no amount is due to the complainant. When he was cross examined by the counsel for the complainant, he admitted that he did not file any complaint against the complainant or did he take any steps against withholding of four cheques by the complainant even after the failure of business transactions. 8. But, when the complainant was cross examined by the counsel for the accused, the case suggested by him was that Ext.P1 cheque was obtained by the complainant from his house forcefully and he had filed a complaint against the complainant and the same is pending; but, no Crl.R.P. No. 795 of 2009 8 evidence was produced to show the pendency of such a complaint. This is the defence version advanced in statement under Section 313 Cr.P.C. also. Thus defence versions are inconsistent and mutually destructive. 9. At this juncture it is pertinent to note that despite the receipt of the lawyer's notice informing the dishonour of the cheque and demand of the cheque amount he did not send a reply notice denying the liability. In view of the defence version advanced in this case, the eloquent silence after the receipt of the lawyer's notice speaks volumes and the same indicates the lack of bona fides of the accused in denying the liability under Ext.P1. The passive silence after the receipt of the notice claiming the huge amount is not a conduct expected from an ordinary prudent man. 10. That apart, absolutely there is no evidence to show that the said business transaction culminated in rejection of the materials delivered to him. In the absence of any positive evidence show the failure of business Crl.R.P. No. 795 of 2009 9 transaction as advanced by the accused in defence, it cannot be held that the accused rebutted the execution and issuance of the cheque. Consequently, the statutory presumption which stood in favour of the complainant would remain unshaken. 11. The court below concurrently observed that though the complainant was subjected to cross examination at length and into minute aspects, regarding the execution and issuance of the cheque, nothing tangible had been elicited from his evidence either to probabilise the defence version or to improbabilise the averments in the complaint. On the above premises the court below found that the complainant has discharged initial burden of proving execution and issuance of the cheque but the accused miserably failed to rebut the presumption under Section 118 (a) and 139 of the N.I.Act. There is no illegality or impropriety in the findings and I do not find any kind of perversity in appreciation of evidence from which those findings have been arrived at. Crl.R.P. No. 795 of 2009 10 12. Re-appreciation of the evidence is impermissible under the revisional jurisdiction, unless it is found that the inferior courts could not have arrived at the said findings on the basis of the materials placed on record or such findings are so perverse or unacceptable. In the absence of any kind of perversity in the appreciation of evidence, this Revision Petition deserves to be dismissed and I do so. Coming to the sentence portion, I find that the sentence imposed on the Revision Petitioner by the courts below are reasonable and the courts below have already taken a lenient view considering the nature and gravity of the offence. The sentence imposed on the Revision Petitioner is perfect and justifiable in view of the Decision in **Damodar S Prabhu v. Sayed Babalal [2010(2) KLT 587(SC)]** . In the result this Revision Petition is dismissed. ## Sd/- **K.HARILAL JUDGE** DSV/MJL