David K.M. v. Kalpetta Co-operative Urban Society Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 12[TH] DAY OF JULY 2023 / 21ST ASHADHA, 1945 CRL.REV.PET NO. 543 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CRA 105/2014 OF DISTRICT COURT &** **SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ST 715/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KALPETTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **DAVID K.M AGED 51 YEARS S/O.K.M.MANUEL, KORANDIYARKUNNEL HOUSE, KALPETTA POST, CHUZHALI, WAYANAD DISTRICT.** ## **BY ADV SRI.MATHEW KURIAKOSE** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** - **1 KALPETTA CO-OPERATIVE URBAN SOCIETY LTD. NO.W 228 KALPETTA POST, WAYANAD DISTRICT, REPRESENTED BY ITS SECRETARY, BIBINDAS K.B.** - **2 STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 682 031.** ## **BY ADV SMT.JAYASREE MANOJ** **SRI.SANAL P RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 12.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 543 OF 2016** **2** ## **O R D E R** ## Dated this the 12[th] day of July, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for convenience), challenging judgment in S.T.No.715/2013 on the files of the Judicial First Class Magistrate Court, Kalpetta and also in Crl.A.No.105/2014 on the files of the Sessions Court, Kalpetta. 2. The revision petitioner is the sole accused in the above case. The respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4. I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 5. The brief facts of the case put up by the complainant before the trial court are as under: **CRL.REV.PET NO. 543 OF 2016** **3** The complainant herein launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter), when cheque dated 11.01.2013 for Rs.1,41,089/- (Rupees one lakh forty one thousand and eighty nine only) allegedly issued by the accused to discharge the liability towards Kalpetta Co-operative Urban Society Ltd.No.W228 was dishonored 'for want of funds', when it was presented for collection. Soon after the dishonor, legal notice was issued demanding the said amount. But no amount paid. 6. The trial court took cognizance and secured the presence of accused for trial and finally tried the matter. During trial, PW 1 was examined and Exts.P1 to P7 were marked on the side of the complainant. 7. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence. But no defence evidence was adduced. 8. On appreciation of evidence, the learned Magistrate found that the accused committed the offence punishable under Section 138 of the N.I. Act and accordingly, the accused was **CRL.REV.PET NO. 543 OF 2016** **4** sentenced to undergo simple imprisonment for a period of two months and to pay an amount of Rs.44,083/- as compensation to the complainant under Section 357(3) of Cr.P.C. In default of payment of compensation, simple imprisonment for a period of one month also was imposed. 9. The judgment in S.T.No.715/2013 dated 14.08.2014 was challenged before the Sessions Court, Kalpetta. The learned Sessions Judge modified the sentence while confirming the conviction as under: “simple imprisonment for till rising of court and to pay a fine of Rs.1,41,089/- (One lakh forty one thousand and eighty nine only) and in default of payment of fine to undergo simple imprisonment for a period of two months. If the fine amount is remitted or recovered, Rs.1,41,089/- will be given to the complainant as compensation u/s.357(1) Cr.P.C.”. 10. While challenging concurrent verdicts of conviction and sentence, the learned counsel for the revision petitioner reiterated the contentions raised before the trial court on the ground that Exts.P6 and P7 documents did not authorise PW1 **CRL.REV.PET NO. 543 OF 2016** **5** to prosecute the proceedings. On perusal of available materials, it appears that as per Exts.P6 and P7 resolutions, the Bank authorised PW1 to prosecute the matter legally and therefore, the said challenge appears to be not convincing. In fact, the court below relied on the evidence of PW1 and Exts.P1 to P8 to hold that the complainant discharged the initial burden in the matter of transaction led to execution of the cheque. Though it is argued by the learned counsel for the petitioner that the execution of the cheque was not proved and PW1 was not the Manager of the Co-operative Bank at the time of transaction, on perusal of Chief Affidavit in lieu of the chief examination, it has been categorically stated that the accused herein issued Ext.P1 cheque on 11.01.2013 in favour of the complainant to discharge the liability. No serious cross-examination, in fact, effected to challenge the said version of the complainant in any manner. Therefore, the challenge raised by the learned counsel for revision petitioner contending that the execution not proved, also cannot be sustained. Thus, it appears that no valid contentions raised to re-visit the concurrent findings of the trial court. **CRL.REV.PET NO. 543 OF 2016** ## **6** 11. 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. 12. As I have already pointed out, in this case, the evidence of PW1 and Exts.P1 to P8, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly. 13. 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 **CRL.REV.PET NO. 543 OF 2016** **7** 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 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. 14. In fact, there is no reason to revisit the concurrent **8** ## **CRL.REV.PET NO. 543 OF 2016** verdicts of conviction. Since the sentence imposed by the Appellate Court is the least minimum possible, sentence also does not require any interference. In the result, this revision petition must fail and is accordingly, dismissed. Since the transaction is of the year 2013, I am inclined to grant one month time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 10.08.2023 and the accused is directed to appear before the trial court on 11.08.2023, either to pay the fine amount or to undergo the modified sentence. In default to do so, the trial court is directed to execute the sentence as per law without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. ## **Sd/-** ## **A. BADHARUDEEN JUDGE** nkr