Babu v. Chemmannur Fashion Jewellers and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944** **CRL.REV.PET NO. 774 OF 2022** **JUDGMENT DATED 30.09.2022 IN CRA 93/2019 OF SESIONS COURT, KALPETTA AND JUDGMENT DATED 26.10.2019 IN ST 366/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,** ## **SULTHANBATHERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** BABU, AGED 44 YEARS, S/O. KUMARAN, THEKKEMAMBUZHAYIL HOUSE, MARUKARA, NOOLPPUZHA POST, SULTHAN BATHERY, WAYANAD DISTRICT, PIN – 673592. BY ADVS. M.B.SHYNI V.R.ANILKUMAR RAJESH KUMAR R. RAMEES P.K. ERFANA PARAMBADAN SARAFUDHEEN T. ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** 1 CHEMMANNUR FASHION JEWELLERS DOOR NO. SBP VI/96 A, KOZHIKODE - MYSORE ROAD, SULTHAN BATHERY TALUK, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JIBIN MATHEW, W/O. MATHEW, KARIKKATTIL HOUSE, THIRUVAMBADY, KOZHIKODE DISTRICT, PIN – 673603. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. SENIOR PUBLIC PROSECUTOR SRI.T.R.RENJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.11.2022, THE COURT ON 15.11.2022 DELIVERED THE FOLLOWING: Crl.R.P.No.774/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.774 of 2022_ ================================ _Dated this the 15[th] day of November, 2022_ ## _**O R D E R**_ This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience). Revision petitioner is the sole accused in S.T.No.366/2017 on the file of the Judicial First Class Magistrate Court-I, Sulthan Bathery. The revision petitioner impugns the judgment dated 26.10.2019 in the above case, which was confirmed by the Sessions Judge, Kalpetta, Wayanad in Crl.Appeal No.93/2019 dated 30.09.2022. The 1st respondent is the original complainant before the trial court and the 2nd respondent is State of Kerala. Crl.R.P.No.774/2022 3 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Notice to the 1[st] respondent stands dispensed with. 3. I shall refer the parties in this Revision Petition as to their status before the trial court as `complainant' and `accused'. 4. Short facts of the case: Consequent to dishonour of cheque for Rs.1,09,550/- dated 03.12.2016, alleged to be issued by the accused to the complainant towards the balance price of gold purchased from the complainant Chemmannur Fashion Jewellers, the complainant initiated prosecution through its power of attorney holder, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for short). 5. The trial court ventured the matter and recorded evidence. During trial, PW1 examined and Exts.P1 to P6 were Crl.R.P.No.774/2022 4 marked on the side of the complainant. 6. Though opportunity was given to the accused to adduce evidence after questioning him under Section 313(1)(b) of Cr.P.C, he did not adduce any evidence. 7. The trial court believed the evidence given by PW1 to the effect that Ext.P2 cheque was issued for discharge of Rs.1,09,550/- towards the balance of the price of the gold ornaments purchased by the accused from the complainant for a total sum of Rs.3,05,650/-. The trial court observed that the evidence of PW1 categorically established the case put up by the complainant and accordingly the benefit of twin presumptions under Sections 118 and 139 of the N.I Act was given in favour of the complainant. 8. Accordingly, the trial court convicted the accused under Section 138 of the N.I Act and sentenced to undergo simple imprisonment till rising of the court and to pay compensation to the Crl.R.P.No.774/2022 5 tune of Rs.1,09,550/- and in default of payment of compensation, to undergo simple imprisonment for a period of 2 months. 9. The matter was taken in appeal before the Sessions Court, Wayanad. The learned Sessions Judge on re-appreciation of the evidence concurred with the finding of the trial court and accordingly the appeal was dismissed. 10. The learned counsel for the accused stressed ground No.C in the Revision Petition, as extracted hereunder: _"The petitioner purchased gold ornaments for the marriage of his friends daughter from the complainant for an amount of Rs.3,27,500/(Rupees three lakhs twenty seven thousand five hundred only). He paid an amount of Rs.2,00,000/- (Rupees two lakhs) to the jewellery at the time of purchasing the gold. He should have paid an amount of Rs.1,27,500/- after the marriage of his daughter. For the prompt re-payment, the petitioner issued a blank cheque after put his signature on it to the complainant. After the marriage of his friend's daughter he paid an amount of Rs.1,00,000/- to the complainant jewellery. The friend of the petitioner failed to repay balance amount of Rs.27,500/- instead of filing case for recovery of the balance amount of Rs.27,500/- the jewellery filed case for Rs.1,09,500/- by making false entry on the cheque. Though it was suggested by the petitioner PW1, it was denied. All the transactions were_ Crl.R.P.No.774/2022 6 _done from the jewellery itself. Therefore the petitioner was not in a position to adduce any evidence about the total value of gold ornaments purchased and the amount repaid by the friend of the petitioner to the jewellery. Though all these facts were come out in evidence the courts below failed to appraise the said facts."_ The above ground itself would indicate that the transaction alleged by the complainant was admitted while disputing the liability as Rs.1,09,550/- and admitting the liability to the tune of Rs.25,000/-. To the contrary, the case advanced by the complainant was proved. 11. In order to revisit the said finding, appreciation and reappreciation of the evidence are necessary and the same are not available to this Court while exercising the power of revision. 12. 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 Crl.R.P.No.774/2022 7 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. ...”_ 13. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke**_ , the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order Crl.R.P.No.774/2022 8 or of the Magistrate unless it is perverse or wholly unreasonable - 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 capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 14. 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 Crl.R.P.No.774/2022 9 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 non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 15. Law is settled on the point that as the complainant discharges its initial burden in the matter of transaction led to execution of Ext.P2 cheque, the complainant would get the benefit of twin presumptions under Sections 118 and 139 of the N.I Act and therefore the courts below rightly given **t** he benefit of Crl.R.P.No.774/2022 10 presumptions in favour of the complainant. 16. In this connection, 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 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_ Crl.R.P.No.774/2022 11 _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 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.”_ 17. 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: _“A meaningful reading of the 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_ Crl.R.P.No.774/2022 12 _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.”_ 18. 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 appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the_ Crl.R.P.No.774/2022 13 _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.”_ 19. 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 presumption under Sections 118 Crl.R.P.No.774/2022 14 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. 20. In view of the discussions, there is no reason to interfere with the concurrent verdicts of conviction and sentence entered into by the trial court as well as the appellate court. Accordingly, it is held that this Revision Petition is devoid of any merits and is liable to be dismissed. 23. In the result, this Revision Petition stands dismissed. In the above circumstances, the learned counsel for the revision petitioner/accused sought for time to pay the compensation. Considering the request of the learned counsel for the revision petitioner, one month's time from today is granted to pay the compensation. Therefore, the revision petitioner is directed to appear before the trial court on or before 14.12.2022 to undergo Crl.R.P.No.774/2022 15 the sentence and to pay compensation. In default to do so, the trial court is directed to execute the sentence as per law without fail. The execution of the sentence shall stand deferred till 13.12.2022. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_