Biju T. Chacko v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 10TH DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 ``` ``` CRL.REV.PET NO. 632 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 59/2021 OF ADDITIONAL DISTRICT COURT, KOTTAYAM ``` ## **`ST 192/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM`** ## **`REVISION PETITIONER/ACCUSED:`** ``` BIJU T. CHACKO AGED 51 YEARS, S/O MATHEW CHACKO, THYTHARA HOUSE, KUMARAKOM P.O, KOTTAYAM- 686563, PIN - 686563 ``` ``` BY ADVS. ``` ``` THOMAS J.ANAKKALLUNKAL JAYARAMAN S. NIRMAL CHERIYAN VARGHESE LITTY PETER ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** - **`1 SUNNY.P.CHACKO AGED 65 YEARS S/O CHACKO, PROPRIETOR, SARAS INVESTMENTS, PUKIDIYIL BUILDINGS, SASTRI ROAD, KOTTAYAM- 686001, PIN - 686001`** ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031, PIN - 682031 ``` ``` SR.PP-SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.09.2022, THE COURT ON 10.10.2022 DELIVERED THE FOLLOWING: ``` ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 2 ``` ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.632 of 2022_ ================================ _Dated this the 10[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 challenging conviction and sentence imposed against the revision petitioner as per judgment dated 28.04.2021, who is the sole accused in S.T.No.192/2021 on the file of the Judicial First Class Magistrate-III, Kottayam, confirmed by the Additional Sessions Judge-I, Kottayam as per judgment in Crl.Appeal No.59 of 2021 dated 07.07.2022. The respondents in this revision petition are State of Kerala represented by Public Prosecutor as well as the original complainant before the trial court. ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 3 ``` 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 4. Shown off unnecessary embellishments, the case put up by the complainant/the 2[nd] respondent herein before the court below is as under: It is alleged by the complainant that the accused borrowed Rs.1,00,000/- from the complainant as loan and issued a cheque No.690420 dated 19.09.2003 for the said sum with assurance of encashment. But when the cheque was presented for collection, the same was dishonoured for the reason ‘Account closed’. Though legal notice intimating the dishonour and demanding the amount covered by the cheque was issued and accepted by the accused, he did not pay the amount. Accordingly, the complainant lodged prosecution alleging commission of offence ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 4 ``` Under Section 138 of the Negotiable Instruments Act (for short ‘the N.I.Act’, hereinafter). 5. The trial court secured the presence of the accused for trial and evidence was recorded. The complainant got examined as PW1 and Exts.P1 to P9 were marked. 6. After questioning the accused under Section 313(1) (b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 7. On appreciation of the evidence, the trial court convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced the accused to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the complainant under Section 357(1) of Cr.P.C and in default of payment of compensation, to undergo simple imprisonment for a period of two months. On appeal, the learned Additional ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 5 ``` Sessions Judge also confirmed the said conviction and sentence on re-appreciation of the evidence. 8. Though the learned counsel for the revision petitioner argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court, finally he conceded that the revision petitioner/accused will be satisfied with grant of 3 months' time to pay the compensation. 9. 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): ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 6 ``` _“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. …”_ 10. 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 ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 7 ``` - unreasonable or 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.”_ 11. 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 ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 8 ``` the whole 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 nonconsideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 12. In this case, as I have already pointed out, the trial court as well as the appellate court rightly appreciated the evidence given by PW1 supported by Exts.P1 to P9 to prove that the accused herein issued Ext.P1 cheque after availing loan of ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 9 ``` Rs.1,00,000/-. Thereby the complainant proved his initial burden entitling him to get the benefit of presumptions under Sections 118 and 139 of the N.I Act. The defence case that has been put up during cross examination of PW1 is that the cheque entrusted with his sibling was misused by him to foist the case and his contention is that a blank cheque given as security and later it was filled up by the accused and launched baseless prosecution. But no evidence is adduced to substantiate this contention. In this connection, it is relevant to refer the law regarding presumptions. 13. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. 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_ ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 10 ``` _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 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_ ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 11 ``` _that in some cases the accused may not need to adduce evidence of his/her own.”_ 14. 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 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.”_ ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 12 ``` 15. 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 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._ _…................_ ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 13 ``` _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.”_ 16. Thus the law is clear on the point that when the complainant discharged his initial burden to prove the transaction led to execution of the cheque, the presumption 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. ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 14 ``` 17. 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. In the case on hand, it appears that the accused did not adduce any evidence. Though during cross examination of PW1 issuance of blank cheque towards the liability to the brother of the accused was suggested, no evidence forthcoming to establish the said contention. In fact, issuance of cheque as blank signed also would attract offence punishable under Section 138 of the N.I.Act following the ratio in _**Kalamani Tex (M/s.) & anr. v. P.Balasubramanian**_ ( _supra_ ). Therefore, it has to be held that the courts below rightly convicted the accused under Section 138 of the N.I Act. 18. Coming to sentence, the trial court imposed sentence to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.1,50,000/- (Rupees One lakh fifty ``` Crl.Rev.Pet.No.632 of 2022 ``` ``` 15 ``` thousand only) to the complainant under Section 357(1) of Cr.P.C and in default of payment of compensation, to undergo simple imprisonment for a period of two months and the same was confirmed as such by the appellate court. Since the sentence is the minimum possible, the sentence also stands confirmed. 19. In the result: - (i) This Revision Petition is dismissed; (ii) The conviction and sentence imposed by the trial court as well as the appellate court stands confirmed; Considering the request of the accused/revision petitioner, two months' time from today is granted to pay the compensation. Therefore, the revision petitioner is directed to appear before the trial court on or before 09.12.2022 to undergo the sentence and to pay fine. In default to do so, the trial court is directed to execute the sentence as per law without fail. ``` 16 ``` ## **`Crl.Rev.Pet.No.632 of 2022`** The execution of the sentence shall stand deferred till 09.12.2022. _**Sd/-**_ _**A. BADHARUDEEN, JUDGE**_ ``` nkr ```