Baby Sheeja N.S. v. State of Kerala & C. Stephen

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA,** **1944** **CRL.REV.PET NO. 688 OF 2022** **AGAINST THE JUDGMENT IN CC 1332/2015 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS-I, THIRUVANANTHAPURAM DATED 07.02.2022** **CRL.APPEAL NO.28/2022 OF SESSIONS COURT,** **THIRUVANANTHAPURAM DATED 23.08.2022** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **BABY SHEEJA N.S., D/O.SELVI, AGED 50 YEARS SMRITHI BHAVAN, NJANDOORKONAM, CHEMPAZHANTHY, POWDIKONAM P.O., THIRUVANANTHAPURAM - 695588** **BY ADVS. M.RAJENDRAN NAIR M.SANTHY** ## **RESPONDENTS/RESPONDENT/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682031** **2 C. STEPHEN AGED 67 YEARS S/O CHELLAPPAN, SIBI BHAVAN, PUTHUKUNNU, POWDIKONAM P.O., THIRUVANANTHAPURAM - 695588 BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.10.2022, THE COURT ON 25.10.2022 DELIVERED THE FOLLOWING:** **CRL.R.P. NO.688 OF 2022** -:2:- ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.R.P.No.688 of 2022 -------------------------------------------------------Dated this the 25[th] day of October, 2022** ## **O R D E R** This is a Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure. The revision petitioner is the accused in C.C.No.1332 of 2015 on the file of the Judicial First Class Magistrate Court-I, Thiruvananthapuram. He impugns the conviction and sentence imposed by the said Court in the above case as per judgment dated 07.02.2022 and the judgment dated 23.08.2022 in Crl.Appeal No.28 of 2022 on the files of the Sessions Court, Thiruvananthapuram. The respondents herein are the State of Kerala as well as the original complainant. **CRL.R.P. NO.688 OF 2022** -:3:- 2. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor on admission. 3. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. 4. Short facts of the case are as under: Prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience) was initiated by the complainant, consequent on dishonour of cheque for Rs.2,00,000/dated 03.09.2015 issued by the accused to the complainant, for want of funds. The case of the complainant was that though legal notice demanding the amount, after dishonour of cheque was issued, the accused not repaid the amount. 5. The learned Magistrate took cognizance of **CRL.R.P. NO.688 OF 2022** -:4:- the matter and secured the presence of accused for trial. 6. During trial, PW1 to PW3 were examined and Exts.P1 to P10 were marked. 7. Thereafter, the accused was given opportunity to adduce defence evidence after questioning her under Section 313(1)(b) of Cr.P.C. Thus, the accused herself got examined as DW1. 8. Thereupon, the learned Magistrate appreciated the evidence and imposed conviction and sentence. The trial court sentenced the accused to pay fine of Rs.3,13,400/- and in default of payment of fine, simple imprisonment for a period of six months was ordered. Compensation was ordered to be paid to the complainant under Section 357(3) of Cr.P.C. 9. Although the revision petitioner challenged the verdict of the trial court before the appellate court, the appellate court also concurred the finding, while **CRL.R.P. NO.688 OF 2022** -:5:- modifying the default sentence for a period of two months and modified payment of compensation out of fine, as provided under Section 357(1)(b) of Cr.P.C.. 10. It is argued by the learned counsel for the revision petitioner, while impeaching the veracity of concurrent verdicts of the trial court, that the court below not appreciated the evidence of PW1 to hold that the accused did not commit the offence. It is submitted further that 9% interest imposed on the accused is clearly against the mandate of Section 138 of the NI Act and in the decision of the Apex Court in **Vijayan R. v. Baby and Another,** [AIR 2012 SC 528] relied on by the courts below, the Apex Court never issued any direction to grant interest at the rate of 9% per annum and the direction was to the Law Commission of India to consider amendment in the statute for grant of interest at the rate of 9% per annum. **CRL.R.P. NO.688 OF 2022** -:6:- 11. I have perused the decision in **Vijayan'** s case (supra), in view of the said contention. It could be noticed that in paragraph 16 of the judgment of the Apex Court directed that _unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different Courts, not only increase the credibility of cheque as a negotiable instrument, but also the_ **CRL.R.P. NO.688 OF 2022** -:7:- _credibility of Courts of justice._ 12. At the same time, the Apex Court recommended the Law Commission of India also to amend the provision to Chapter 17 of the NI Act _in all cases where there is a conviction, there should be a consequential levy of fine of an amount sufficient to cover the cheque amount and interest thereon at a fixed rate of 9% per annum interest, followed by award of such sum as compensation from the fine amount. This would lead to uniformity in decisions, avoid multiplicity of proceedings (one for enforcing civil liability and another for enforcing criminal liability) and achieve the object of Chap.17 of the Act, which is to increase the credibility of the instrument. This is however a matter for the Law Commission of Commission of India to consider._ 13. In view of the above discussion, the challenge raised by the learned counsel for the accused in **CRL.R.P. NO.688 OF 2022** -:8:- the matter of grant of 9% interest found to be not only meritless but, unsustainable too. 14. In the case on hand, the courts below relied on the evidence of PW1 supported by the evidence of PW2 and PW3 to hold that the complainant discharged his initial burden in the matter of the transaction led to execution of Ext.P1 cheque. The case put by the accused before the courts below is that there was transaction between the complainant and the accused during 2011 and she borrowed some money from the complainant for medical treatment of her brother. But she had repaid the amount with 4% interest in 2014. But the complainant demanded 5% interest i.e. Rs.35,000/- in excess. Since the accused did not repay the said amount, this case was foisted by misusing the said cheque. DW1, the accused given evidence in this regard. 15. In fact, these contentions were negatived **CRL.R.P. NO.688 OF 2022** -:9:- by the trial court as well as the appellate court relying on the evidence of PW1 to PW3 supported by Exts.P1 to P10 and disbelieving the oral evidence of DW1. 16. In this matter, this Court, while exercising the revisional jurisdiction, has no power to appreciate or re-appreciate evidence. 17. 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 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_ **CRL.R.P. NO.688 OF 2022** -:10:- _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. ...”_ 18. 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 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 **CRL.R.P. NO.688 OF 2022** -:11:- ## 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.”_ 19. 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 purpose of the revisional jurisdiction is to preserve power in the court to do justice **CRL.R.P. NO.688 OF 2022** -:12:- 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, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 20. In fact, nothing available in this matter to exercise power of revision to set aside the conviction in any manner where, the courts below given emphasis to presumptions under Sections 118 and 139 of the NI Act in favour of the complainant. Law regarding presumption is **CRL.R.P. NO.688 OF 2022** -:13:- also settled as well. 21. 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_ **CRL.R.P. NO.688 OF 2022** -:14:- _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 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.”_ 22. 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 **CRL.R.P. NO.688 OF 2022** -:15:- 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 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.”_ 23. 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], _**M/S Kalamani Tex & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of **CRL.R.P. NO.688 OF 2022** -:16:- ## 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 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 2[nd] 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_ **CRL.R.P. NO.688 OF 2022** -:17:- _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.”_ 24. 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 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. 25. In the case on hand, no convincing evidence adduced by the accused to prove that the admitted liability was discharged, as contented. Similarly, the accused failed to rebut the presumptions. In view of the matter, the conviction imposed by the trial court and **CRL.R.P. NO.688 OF 2022** -:18:- confirmed by the appellate court does not require any interference. 26. Regarding the sentence, the appellate court imposed the least minimum possible sentence and therefore, the same also does not require any interference. 27. Faced with the situation, the learned counsel for the accused sought six months time to pay the amount on the ground that the accused has been suffering from various illness and treating this as a particular case, in deviation from the normal norms. In view of the matter, I am inclined to grant six months time from today in this particular case. In the result, the revision petition fails and it is, accordingly dismissed. Consequently, the conviction and sentence stand confirmed. Considering the request of the revision **CRL.R.P. NO.688 OF 2022** -:19:- petitioner/the accused and in consideration of the fact that the transaction was during 2015, four months from today is granted to pay the fine amount and therefore, the revision petitioner/the accused is directed to appear before the trial court on 24.02.2023 to pay the fine or to undergo the default sentence. Till 23.02.2023, the execution of the sentence shall stand deferred. The interim order dated 11.10.2022 stands vacated. It is specifically ordered that, if the revision petitioner/accused fails to appear before the trial court on 24.02.2023, the trial court shall execute the sentence without fail. Registry is directed to forward a copy of this order to the court below concerned for information. Sd/- **A. BADHARUDEEN JUDGE** rkj