Crl.R.P No.11 of 2023

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 13[TH] DAY OF JANUARY 2023 / 23RD POUSHA, 1944 CRL.REV.PET NO. 11 OF 2023** **AGAINST THE JUDGMENT DATED 27.09.2022 IN CRA 278/2020 OF ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA JUDGMENT DATED 5.10.2020 IN CC 295/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** C.G. MANOJ, AGED 47 YEARS, S/O. GANGADHARAN, CHERUPILLIL HOUSE, IRINGOLE KARA, IRINGOLE P.O., PERUMBAVOOR, ERNAKULAM, PIN – 683542. BY ADV MOHAMMED SIYAD M.F. ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** 1 SIDHEEK, AGED ABOUT 37 YEARS S/O. ABU, KUNNAPPILLY HOUSE, PALLIPRAM KARA, MARAMPILLY VILLAGE, ERNAKULAM, PIN – 683105. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. PUBLIC PROSECUTOR SRI.G.SUDHEER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.01.2023, THE COURT ON 13.01.2023 DELIVERED THE FOLLOWING: Crl.R.P No.11/2023 2 ## _**A. BADHARUDEEN, J.**_ _================================ Crl.R.P No.11 of 2023_ ================================ _Dated this the 13[th] day of January, 2023_ ## _**O R D E R**_ This revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience) is at the instance of the sole accused in C.C.No.295/2017 on the file of the Judicial First Class Magistrate Court-II, Perumbavoor. 2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court-II, Perumbavoor, in the above case dated 05.10.2020, modified by the Additional Sessions Judge, Muvattupuzha in Crl.Appeal No.278/2020 dated 27.09.2022. 3. Heard the learned counsel for the revision petitioner Crl.R.P No.11/2023 3 and the learned Public Prosecutor. Since the case was taken up for orders in the admission stage itself, notice to the respondent is dispensed with. 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. The complainant initiated prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) against the accused, when cheque for Rs.1,75,000/- dated 20.01.2014, alleged to be issued by the accused to the complainant in repayment of Rs.2 lakh alleged to be borrowed by the accused from the complainant, was dishonoured, when it was presented for collection. 6. The trial court secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P6 were marked on the side of the complainant. Ext.X1 also was marked. Crl.R.P No.11/2023 4 7. The accused was questioned under Section 313(1)(b) of Cr.P.C and thereafter, though he was given opportunity to adduce defence evidence, he did not adduce any evidence. 8. The trial court given emphasis to the evidence of PW1 and Exts.P1 to P6 to hold that the complainant discharged his initial burden in the matter of executing Ext.P1 cheque. 9. The defence case advanced before the appellate court was that the accused borrowed Rs.40,000/- from the complainant during 2004 and during this period, the present cheque was entrusted. The further contention was that the said amount was paid during 2011 and, therefore, the cheque lacks consideration. 10. Another contention raised before the appellate court was that the complainant had not disclosed the details of transaction in the lawyer notice issued, as per Ext.P4 as well as in the complaint. But this contention was negatived by the appellate court relying on a decision of this Court reported in [2021 (2) Crl.R.P No.11/2023 5 KHC 432], _**Basheer v. Usman Koya**_ . In fact, the legal position relied on by the appellate court was absolutely correct. So, this contention cannot be sustainable. The source of complainant to arrange Rs.2 lakh also was challenged before the appellate court and the same was negatived by the appellate court believing the evidence of PW1 to the effect that the complainant had been conducting Centre for Examination of Pollution of vehicles at Pattalil and also he had a chitty transaction and the money derived out of the same was given to the complainant. 11. The trial court also negatived the above contentions for justified reasons, as could be read out from the trial court judgment. 12. On the basis of the said findings, the trial court imposed sentence to undergo simple imprisonment for two months under Section 138 of the N.I Act and ordered to pay compensation of Rs.1,75,000/- under Section 357(3) of Cr.P.C to Crl.R.P No.11/2023 6 the complainant and in default of payment of compensation, to undergo simple imprisonment for one month. 13. The appellate court modified the sentence to imprisonment till rising of the court and to pay compensation of Rs.1,75,000/- and in default of payment of compensation, to undergo simple imprisonment for one month. 14. In this case, the issuance of cheque is admitted. But the accused raised contention that the cheque was issued in the year 2004 when he had borrowed Rs.40,000/-. In fact, the said contention or the contention to the effect that the said liability was discharged, not proved even by a remote piece of evidence. To the contrary, the complainant given satisfactory evidence to prove the transaction, passing of consideration and the execution of cheque in discharge of his initial burden in this regard. It is relevant to note that the trial court as well as the appellate court negated the contentions raised by the accused as narrated herein Crl.R.P No.11/2023 7 above, in a case the accused who admitted issuance of cheque on the premise of a transaction of the year 2004 to the tune of Rs.40,000/-, failed either to prove the said contention or consequential issuance of cheque or discharge of the said liability, as contended. Therefore, the conviction entered into by the trial court does not require any interference. It is noticed that the trial court as well as the appellate court correctly appreciated evidence and recorded conviction. The appellate court rightly modified the sentence to the least minimum possible. In view of the above, there is no reason to interfere with the sentence also. 15. Although the learned counsel for the revision petitioner/accused argued to unsettle the concurrent verdicts of conviction entered into by the trial court as well as the appellate court and the modified sentence by the appellate court, finally the learned counsel fairly submitted that the revision petitioner/accused will be satisfied with grant of one month's time to pay the compensation. Crl.R.P No.11/2023 8 16. 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. Decisions reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], _**State of Kerala v. Puttumana Illath Jathavedan Namboodiri;**_ [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke**_ ; [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda,**_ are on this point. 17. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I Act also well settled 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. It has been Crl.R.P No.11/2023 9 settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. See decisions reported in [2010 (2) KLT 682 (SC)], _**Rangappa v. Mohan**_ ; [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**_ , [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**_ . In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above. 18. In view of the discussions, the Revision Petition stands dismissed. Crl.R.P No.11/2023 10 19. In this matter, the cheque amount is Rs.1,75,000/- and the transaction is of the year 2014. In the interests of justice, I am inclined to grant one month's time from today to pay the fine/compensation. Therefore, the revision petitioner/accused is directed to appear before the trial court on or before 13.02.2023 to undergo the sentence and to pay fine. On failure to do so, the trial court is directed to execute the sentence as per law without fail. 20. Since time granted till 13.02.2023, execution of the sentence shall stand deferred till 12.02.2023. Registry shall forward a copy of this order to the court below concerned for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_