Dinesh Kumar v. Sajeevan and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 CRL.REV.PET NO.1527 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CRA 313/2014 OF ADDITIONAL DISTRICT & SESSIONS COURT, MUVATTUPUZHA CC 67/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II,** ## **PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** DINESH KUMAR, AGED 52 YEARS, S/O.THANKAPPAN, THATTUPARA VEEDU, VATTACKATTUPADI, PERUMBAVOOR, NOW WORKING AT K.L.M CHITTS, NEAR UNION BANK, PERUMBAVOOR. BY ADVS. SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** 1 SAJEEVAN, AGED 50 YEARS, S/O.SIVARAMAN NAIR, CHAMOTHINAL HOUSE, MUDAKKUZHA KARA, VENGOOR WEST VILLAGE – 685 583. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. BY ADVS. SMT.SIKHA G.NAIR SRI.T.K.SAJEEV SRI.T.R.RENJITH, SR. PUBLIC PROSECUTOR **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.R.P.No.1527 of 2016** 2 ## **O R D E R** ## **Dated this the 20[th] day of October, 2022** This Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., by the accused in C.C.No.67/2012 on the file of the Judicial First Class Magistrate Court-II, Perumbavoor, arraying the original complainant as the 1[st] respondent and State of Kerala as the 2[nd ] respondent. 2. Heard the learned counsel for the revision petitioner, learned counsel appearing for the 1[st] respondent and the learned Public Prosecutor appearing for the 2[nd] respondent. 3. I shall refer the parties in this revision as 'complainant' and 'accused' for easy reference. 4. The brief facts of the case put up by the complainant before the trial court is as under: Consequent to dishonour of a cheque dated 21.12.2009 for Rs.3 lakh alleged to be issued ## **Crl.R.P.No.1527 of 2016** 3 by the accused to the complainant, in discharge of the said sum, alleged to be borrowed by the accused from the complainant, the complainant initiated prosecution alleging that the accused committed offence punishable under Section 138 of Negotiable Instrument (hereinafter referred as 'NI Act', for short). 5. In this case, the trial court examined PWs 1 and 2 and marked Exts.P1 to P6. Ext.X1 also was marked. 6. When the accused was given opportunity to adduce defence evidence, after questioning him under Section 313(1)(b) of Cr.P.C., Ext.D1 was tendered in evidence, on the defence side. The trial court appraised the evidence and finally found the accused guilty for the offence punishable under Section 138 of NI Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment till rising of the court and to pay fine of Rs.3 lakh and the fine was ordered to be given as ## **Crl.R.P.No.1527 of 2016** 4 compensation to the complainant under Section 357(3) of Cr.P.C. It was ordered further that in case of default in payment of fine, the accused would undergo default imprisonment for a period of four months. 7. The judgment in C.C.No.67/2012 dated 20.05.2014 was challenged before the Sessions Court, Muvattupuzha. The learned Sessions Judge after re-appreciating the evidence confirmed the conviction as well as the sentence, as per judgment dated 18.02.2016. 8. In this matter, it is argued by the learned counsel for the revision petitioner that when demand notice was issued by the complainant to the accused, the details regarding the transaction not disclosed and the same is fatal. Therefore, the courts below went wrong in convicting and sentencing the accused. 9. In support of this contention, a decision of this Court reported in [2016 (4) **Crl.R.P.No.1527 of 2016** 5 KHC 901] _**Divakaran K.K. v. State of Kerala and**_ _**Another**_ , where this Court held that an accused in a complaint case filed under Section 142 of the Act is entitled to know before the trial the particulars of the accusation against him and, therefore, the details of the transaction should find a place in the notice as well as in the complaint, has been relied on. 10. In fact, this decision was overruled by the Division Bench of this Court in the subsequent decision reported in [2021 (2) KHC 432] _**K.Basheer v. C.K.Usmankoya and Others.**_ 11. That apart, in decision reported in [(1999) 8 SCC 221] _**Central Bank of India and Another v. Saxons Farms and Others**_ , the Apex Court categorically held that demand contemplated under Section 138(b) of the NI Act requires no formalities and a mere demand would suffice the notice. Therefore, this contention cannot be appreciated. 12. Ext.D1 showing issuance of 10 cheque ## **Crl.R.P.No.1527 of 2016** 6 leaves on various dates in favour of the complainant had been tendered in evidence before the trial court. PW1 categorically given evidence that Ext.D1 did not show that the rights of PW1 were transferred in favour of the accused. In this matter, apart from challenging the legality of the demand notice, the argument advanced by the revision petitioner is confined to reiteration of the contentions raised by the trial court as well as the appellate court, which would require consideration based on appreciation and reappreciation of evidence. In fact, such power is not available to the revisional court. The power of revision of this Court is well established. 13. 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 **Crl.R.P.No.1527 of 2016** 7 (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 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_ ## **Crl.R.P.No.1527 of 2016** 8 _respondent by reappreciating the oral evidence. ...”_ 14. 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 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_ 9 ## **Crl.R.P.No.1527 of 2016** _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.”_ 15. 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 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 ## **Crl.R.P.No.1527 of 2016** 10 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, 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. 16. In this matter, as I have already pointed out, that the courts below relied on evidences given by PW1 and PW2 to hold that, the transaction led to execution of the cheque stand proved by the complainant, and, therefore, the complainant would get benefit of presumptions under Section 118 and 138 of the NI Act. 17. Indubitably, in a prosecution alleging commission of offence punishable under Section 138 of the NI Act, once the complainant ## **Crl.R.P.No.1527 of 2016** 11 discharges his initial burden, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act are available to the complainant. Law regarding presumptions is also settled as well. 18. 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 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_ **Crl.R.P.No.1527 of 2016** 12 _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_ **Crl.R.P.No.1527 of 2016** 13 _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.”_ 19. 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: **==> picture [274 x 11] intentionally omitted <==** _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._ ## **Crl.R.P.No.1527 of 2016** ## 14 _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.”_ 20. 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_ **Crl.R.P.No.1527 of 2016** 15 _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 ComplainantRespondent 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_ 16 ## **Crl.R.P.No.1527 of 2016** _show that the cheque was not issued in discharge of a debt.”_ 21. 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 and 139 of the NI 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. 22. In this matter, the concurrent finding of the courts below in the matter of conviction as well as sentence is within the sweep of power of the courts and there is no illegality to interfere the same by exercising the power of revision. Therefore, this revision petition fails and is accordingly dismissed. Therefore, the revision petitioner/the ## **Crl.R.P.No.1527 of 2016** **==> picture [13 x 9] intentionally omitted <==** accused is directed to appear before the trial court on or before 3.11.2022 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. Registry is directed to forward a copy of this order to the trial court forthwith for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww **Crl.R.P.No.1527 of 2016** 18 ## **APPENDIX OF CRL.MC 1527/2016** PETITIONER'S ANNEXURES: ANNEXURE1 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.SIJO KUNJACHAN AND DATED 15.10.2016. ANNEXURE-A2 TRUE COPY OF THE DECISION REPORTED IN DIVAKARAN K.K. Vs.STATE OF KERALA AND ANOTHER 2016(4)KHC901. ANNEXURE-A3 TRUE COPY OF THE ORDER DATED 6TH DAY OF JUNE 2017 IN CRL.L.P.NO.179 OF 2017.