B. Karthikeyan Sreebhavanam v. State of Kerala and Sathyan Sauparnam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 CRL.REV.PET NO. 3037 OF 2011 AGAINST THE ORDER/JUDGMENT ST 157/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III, KOLLAM** **CRA 341/2010 OF DISTRICT COURT & SESSIONS COURT,KOLLAM** ## **REVISION PETITIONER/S:** B.KARTHIKEYAN SREEBHAVANAM, MUKKADA KIZHAKKATHIL, PUTHUKKADU P.O., CHAVARA, KOLLAM DISTRICT. BY ADVS. SRI.C.RAJENDRAN SMT.DHANYA S.DHARAN SMT.R.S.SREEVIDYA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SATHYAN SAUPARNAM, 92/A, SREEBHADRA NAGAR, ULIYAKKOVIL P.O., KOLLAM - 691019. BY ADVS. SMT.S.SEETHA, PUBLIC PROSECUTOR SRI.M.T.SURESHKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 3037 OF 2011 2 ## **ORDER** The revision petition is directed against the conviction and sentence imposed by the Court of the Judicial First Class Magistrate-III, Kollam (Trial Court) in S.T. No.157/2008, which was confirmed by the Court of the Sessions Judge, Kollam (Appellate Court) in Criminal Appeal No.341/2010, holding the revision petitioner guilty for an offence under Section 138 of the Negotiable Instruments Act (in short, “N.I.Act”). The revision petitioner was the accused and the 2[nd] respondent was the complainant before the Trial Court. 2. The skeletal background facts for the determination of the revision petition are as follows: (i) In January 2005, the revision petitioner had contacted the 1[st] respondent and requested for a loan of Rs.3,00,000/-. The 1[st] respondent paid a sum of Rs.2,35,000/- on 02.02.2005 and 11.02.2005, respectively, by way of cheques CRL.REV.PET NO. 3037 OF 2011 3 drawn in favour of the revision petitioner. Subsequently, on 11.02.2005, the 1[st] respondent also gave the revision petitioner an amount of Rs.65,000/- in cash. The revision petitioner had assured that he would repay the amount by September 2005 and he had issued Ext.P10 cheque for an amount of Rs.3,00,000/-. On the lapse of the promised time period, the 2[nd] respondent demanded for return of the money. Then, the revision petitioner requested for further time to re-pay the amount. Accordingly, the revision petitioner changed the date on Ext.P10 cheque from 26.09.2005 to 16.08.2006 and counter signed the corrected date. On the cheque being presented for collection, the same was dishonoured by Ext.P2 memorandum with an endorsement “funds insufficient”. The 2[nd] respondent had caused Ext.P3 lawyer notice which was received by the revision petitioner. The revision petitioner had issued Ext.P9 reply CRL.REV.PET NO. 3037 OF 2011 4 - notice denying the allegation in Ext.P3 lawyer notice. As the revision petitioner failed to pay the demanded amount, he committed the offence under Section 138 of the N.I.Act. - (ii) The Trial Court took cognizance of the offence and issued summons to the revision petitioner. After completing the statutory procedural formalities contemplated under the the Code of Criminal Procedure (in short, 'Cr.P.C.') the complaint was posted for trial. - (iii) The 1[st] respondent was examined as PW1 and Exts.P1 to P10 were marked through him. The revision petitioner examined his brother-in-law - as DW1. Exts.D1 and D2 were confronted through DW1 and marked. The statement of the revision petitioner was recorded under Section 313 Cr.P.C. - (iv) The Trial Court found the revision petitioner CRL.REV.PET NO. 3037 OF 2011 5 guilty for having committed an offence under Section 138 of the N.I.Act and convicted him for the said offence, and sentenced him to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.3,00,000/- to the 2[nd] respondent under Section 357(3) of the Cr.P.C., and in default to undergo simple imprisonment for a further period of three months. (v) Challenging the judgment of the Trial Court, the revision petitioner filed Criminal Appeal No.341/2010 before the Appellate Court. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment confirmed the conviction, but modified the sentence by ordering the appellant to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.3,75,000/- to the 2[nd] respondent, and in default to undergo simple CRL.REV.PET NO. 3037 OF 2011 6 imprisonment for a further period of five months. 3. Aggrieved by the concurrent judgments of the courts below, the revision petition is filed. 4. Heard; C.Rajendran, the learned Counsel appearing for the revision petitioner, the learned Public Prosecutor appearing for the 1[st] respondent and Sri.M.T.Suresh Kumar, the learned Counsel appearing for the 2[nd] respondent. 5. The sheet-anchor of the learned Counsel appearing for the revision petitioner was that the courts below failed to appreciate that there was a material alteration in the date on Ext.P1 cheque. Moreover, the 2[nd] respondent does not have the wherewithal to lend Rs.3,00,000/-. Furthermore, the substantive sentence imposed by the courts below is excessive. Hence, the revision may be allowed. 6. The learned Counsel appearing for the 2[nd] CRL.REV.PET NO. 3037 OF 2011 7 respondent defended the judgments of the courts below and argued that there is no impropriety or illegality in the impugned judgments warranting interference by this Court by invoking its extraordinary revisional powers under Sections 397 to 401 of the Cr.P.C. He prayed that the revision petition may be dismissed. 7. Is there any illegality, irregularity or impropriety in the judgments of the courts below. 8. I begin to consider the revision petition by altering myself of the nature of the revisional jurisdiction of this Court under Sections 397 to 401 of the Cr.P.C. 9. It is trite, the revisional powers of this Court is to be sparingly exercised and is in the nature of supervisory jurisdiction to correct manifest miscarriage of justice. The reivsional power is not be equated with the powers of an Appellate/Second CRL.REV.PET NO. 3037 OF 2011 8 ## Appellate jurisdiction. 10. In **Sinh Ramrao Chavan vs. Sanjay Dattatray Gulabrao Phalke & Anr. [(2015) 3 SCC 123],** the Honourable Supreme Court has succinctly laid down the powers of the High Court under Sections 397 to 401 of Cr.P.C. It is apposite to extract the relevant declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is erverse or the view taken by the court is wholly unreasonable or there is non-onsideration 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. Revisional power of the court under Sections 397 to 401 of Cr.PC 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 glaringly 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”. ## 11. Now, coming back to the facts of the instant CRL.REV.PET NO. 3037 OF 2011 9 case. 12. The 2[nd] respondent's case is that he had lend Rs.2,00,000/- to the revision petitioner by way of Ext.D1 cheque on 02.02.2005, Rs.35,000/- by Ext.D2 cheque on 11.02.2005 and Rs.65,000/- by cash also on 11.02.2005. The revision petitioner initially assured to repay the amount on or before 26.09.2005, but sought for further time till 16.08.2006. Accordingly, the revision petitioner voluntarily changed the date on Ext.P10 cheque to 16.08.2006 and counter signed the same. After the expiry of the extended time period, the 2[nd] respondent issued Ext.P3 lawyer notice demanding for the return of the money. At that juncture, the revision petitioner issued Ext.P9 lawyer notice contending that the 2[nd] respondent had only lent Rs.1,00,000/- to DW1 - his brother-in-law. 13. It is pertinent to note that the revision petitioner has taken contradictory defences before the courts below. It was his case in Ext.P9 lawyer notice CRL.REV.PET NO. 3037 OF 2011 10 that only an amount of Rs.1,00,000/- was lent by the 2[nd] respondent to DW1. In the Section 313 statement, the 2[nd] respondent said that Rs.2,00,000/- was lent by the 2[nd] respondent to DW1. In the cross examination of the 2[nd] respondent (PW1), the revision petitioner took the stand that an amount of Rs.2,00,000/- was lent to DW1. Further, DW1 in his cross-examination deposed that he had requested an amount of Rs.2,00,000/- from PW1, who in turn demanded the revision petitioner to issue the cheque. Thus, the revision petitioner has taken inconsistent stands at different stages of the proceedings, which by itself improbablises his defence. 14. It is relevant to point out that an amount of Rs.2,35,000/- was lent by the 2[nd] respondent to the revision petitioner by Exts.D1 and D2 cheques on 02.02.2005 and 11.02.2005, which stands corroborated in Exts.P6 and P7 statement of accounts. The said cheques were encashed by the revision petitioner through his bank account, which crumbles his defence CRL.REV.PET NO. 3037 OF 2011 11 in Ext.P9 reply notice that only Rs.2/- lakh was given to DW1. 15. It is on the basis of the above clinching material, that the courts below have concluded that the 2[nd] respondent had discharged the initial onus of proof as prescribed under Section 138 of the N.I.Act. 16. The trump card of the revision petitioner is that there is a material alteration on Ext.P10 cheque rendering it worthless and void because the date on the cheque i.e., 26.09.2005 was substituted with the date 16.08.2006. 17. It is worthwhile to point out that there was no whisper in the said regard either in Ext.P9 reply notice or in the cross examination of PW1. The revision petitioner also failed to get Ext.P10 cheque compared by an expert. It was only at the time of final hearing before the Trial Court, the Counsel for the revision petitioner raised the above contention. CRL.REV.PET NO. 3037 OF 2011 12 18. The courts below, invoking its powers under Section 73 of the Indian Evidence Act, 1872, have compared the signature on Ext.P10 cheque with the signatures of the revision petitioner on the reverse side of Exts.D1 and D2 cheques and on the Section 313 statement, and arrived at the conclusion that it was the revision petitioner who counter signed the substituted date on Ext.P10 cheque. Consequently, the courts below rejected the defence of the revision petitioner and held that there was no material alteration on Ext.P10 cheque. ## 19. In **Geemol Joseph vs. Kousthabhan and another** [2019 (4) KHC 193] has held thus: “17. The party who consents to the alteration as well as the party who made the alteration are not entitled to complain against such alteration. If the drawer of the cheque himself altered the cheque, he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed (See Veera Exports v. CRL.REV.PET NO. 3037 OF 2011 13 Kalavathy, 2002 KHC 12 : AIR 2002 SC 38 : 2002 (1) KLT 58 : 2001 (2) KLJ 997 : 2002 (1) SCC 97 : 2002 CriLJ 203)”. 20. Going by the findings of the courts below that it was the revision petitioner who counter-signed the corrected date, I am of the definite view that the contention regarding material alteration is an after thought of the revision petitioner to wriggle out of his criminal liability. 21. A negotiable instrument including a cheque carries the presumption of consideration in terms of S.118(a) and under S.139 of the N.I.Act, which reads thus: "118. Presumptions as to negotiable instruments.-- Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;" "139. Presumption in favour of holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability." ## 22. In **Kalamani Tex and another vs.** CRL.REV.PET NO. 3037 OF 2011 14 ## **P.Balasubramanian** [2021 (2) KHC 517], a three Judge Bench of the Honourable Supreme Court has held as follows: “14. 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. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243 : (2019) 18 SCC 106 : 2019 (1) KLD 581 : 2019 (2) KLJ 350 : AIR 2019 SC 1876 : 2019 CriLJ 2400), P.18 in the following words: "In the case at hand, even after purportedly drawing the presumption under S.139 of the NI Act, the trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant – accused..." xxxxxxxx 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 : CRL.REV.PET NO. 3037 OF 2011 15 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." ## 23. In **Shree Daneshwari Traders vs. Sanjay** ## **Jain and another** [2019 (4) KHC 495], the Honourable ## Supreme Court held thus: “16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt. 17. It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut the presumption, in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, the Supreme Court in paras (14-15) and paras (18-20) held as under:- “14. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or CRL.REV.PET NO. 3037 OF 2011 16 insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) “may presume” (rebuttable), (2) “shall presume” (rebuttable), and (3) “conclusive presumptions” (irrebuttable). The term “presumption” is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the “presumed fact” drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means “taking as true without examination or proof”. ## xxxxxxxxxxx ## 24. Again in **Sumeti Vij vs. M/s. Paramount** **Tech Fab Industries** , [MANU/SC/0167/201] the Honourable Supreme Court examined the scope and purport of Sections 138 and 139 of the N.I.Act by ## holding thus: “17. Likewise, Under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the Accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. In Rohitbhai Jivanlal Patel v. State of Gujarat and Anr. MANU/SC/0393/2019 : (2019) 18 SCC 106, this Court has examined the scope of Sections 138 and 139 of the Act, which reads as under: 15. So far the question of existence of basic ingredients for drawing of presumption Under Sections 118 and 139 of the NI Act is concerned, apparent it is that the Appellant-Accused could not deny his signatures on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the CRL.REV.PET NO. 3037 OF 2011 17 Accused for a sum of Rs. 3 lakhs each. The said cheques were presented to the bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the Appellant-Accused to establish a probable defence so as to rebut such a presumption. ....... 17. On the aspects relating to preponderance of probabilities, the Accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence which could be brought on record by the Accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged Under Sections 118 and 139 of the NI Act. This Court stated the principles in Kumar Exports [Kumar Exports v. Sharma Carpets, MANU/SC/8414/2008 : (2009) 2 SCC 513] 20. The Accused in a trial Under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an Accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The Accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the Accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of CRL.REV.PET NO. 3037 OF 2011 18 the consideration and existence of debt, apparently would not serve the purpose of the Accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising Under Sections 118 and 139 of the Act. 21. The Accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, therefore, the presumptions Under Sections 118 and 139 of the Act will not again come to the complainant's rescue. It was further considered by this Court in Uttam Ram v. Devinder Singh Hudan and Anr. MANU/SC/1435/2019 : (2019) 10 SCC 287”. 25. On an overall consideration of records, the impugned judgments and the exposition of law in the afore-cited decisions, I do not find any illegality, impropriety or irregularity in the impugned judgments CRL.REV.PET NO. 3037 OF 2011 19 holding the revision petitioner guilty for committing an offence under Section 138 of the N.I.Act. Accordingly, I confirm the concurrent finding of conviction of the courts below imposed on the revision petitioner. 26. Now, coming to the question of sentence. The Trial Court had sentenced the revision petitioner to undergo simple imprisonment for a period of six months, and to pay a compensation of Rs.3,00,000/and in default to undergo simple imprisonment for a period of six months. The said sentence was subsequently modified by the Appellate Court, by reducing the term of simple imprisonment for a period of one month and directing the revision petitioner to pay compensation of Rs.3,75,000/- and in default to undergo simple imprisonment for a period of five months. 27. The Honourable Supreme Court has in a plethora of precedents held that Section 138 of the N.I.Act is more civil in nature and the intention of the legislature is to provide the drawer of the cheque an CRL.REV.PET NO. 3037 OF 2011 20 opportunity to pay the debt, rather than incarcerating him in prison, which would serve no fruitful purpose to the complainant. Therefore, the substantive sentence can always be limited to a minimum period, with an order to pay fine, and from which compensation can be ordered to be paid to the complainant. 28. Taking into account the above legal position, I am of the view that the substantive sentence imposed by the courts below is excessive and the same needs to be modified. 29. At the said point of time, the learned Counsel appearing for the revision petitioner prayed that the revision petitioner may be granted some time to pay the compensation amount. In the result: - (i) The revision petition is allowed in part; - (ii) The conviction imposed by the Trial Court and confirmed by the Appellate Court stands confirmed; CRL.REV.PET NO. 3037 OF 2011 21 - (iii) The sentence stands modified as under: - (a) The revision petitioner/accused shall undergo simple imprisonment for a day, till the rising of the Court for the offence under Section 138 of the N.I.Act and also to pay a fine of Rs.3,75,000/(Rupees Three Lakh Seventy Five Thousand only), and in default of payment of fine, the revision petitioner shall undergo default imprisonment for a period of five months. The fine amount if realised, shall be paid to the 2[nd] respondent/complainant as compensation under Section 357(1) (b) of the Cr.P.C.. - (b) Considering the request of the revision petitioner, two months time from today is granted to the revision petitioner to deposit the fine amount. - (c) The revision petitioner is directed to appear before the Trial Court on or before **13.11.2023** to undergo the modified sentence and to pay the fine. CRL.REV.PET NO. 3037 OF 2011 22 (d) In case of failure of the revision petitioner to appear before the Trial Court and pay the fine amount, the Trial Court is directed to execute the sentence without fail, in accordance with law. (e) The execution of the sentence shall stand deferred till 13.11.2023. (f) The Registry is directed to forthwith forward a copy of this judgment to the Trial Court for compliance. Sd/- **C.S.DIAS JUDGE** rkc/12.09.23