Dr. N.S. Beena v. State of Kerala and Nizar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 CRL.REV.PET NO. 756 OF 2022** **AGAINST THE JUDGMENT DATED 10.08.2022 IN CRA 111/2022 OF DISTRICT COURT & SESSIONS COURT, KOLLAM AND JUDGMENT DATED 28.10.2021 IN ST 55/2019 OF JUDICIAL MAGISTRATE OF FIRST** ## **CLASS-II, KARUNAGAPPALL** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** DR.N.S.BEENA,AGED 54 YEARS, W/O UNNIKRISHNAN, GYNACOLOGIST, GOVT. TALUK HEAD QUARTERS HOSPITAL, KARUNAGAPPALLY, RESIDING AT KRISHNA, PRASANTHI NAGAR, PADA SOUTH, KARUNAGAPPALLY, PIN – 690518. BY ADVS. C.S.MANU DILU JOSEPH C.A.ANUPAMAN T.B.SIVAPRASAD C.Y.VIJAY KUMAR MANJU E.R. ANANDHU SATHEESH ALINT JOSEPH PAUL JOSE ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 NIZAR,AGED 52 YEARS, S/O.ABDUL RAHMAN KUNJU, CHAKKALAYIL HOUSE, CLAPPANA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT, PIN – 690525. SENIOR PUBLIC PROSECUTOR SRI.RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.11.2022, THE COURT ON 21.11.2022 DELIVERED THE FOLLOWING: Crl.R.P.No.756/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P No.756 of 2022_ ================================ _Dated this the 21[st] day of November, 2022_ ## _**O R D E R**_ This is a Revision Petition filed under Section 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience) by the revision petitioner, who is the accused in S.T.No.55/2019 on the file of the Judicial First Class Magistrate Court-II, Karunagappally, challenging conviction and sentence imposed against him by the said court as per judgment dated 29.10.2021 which was confirmed by judgment dated 10.08.2022 in Crl.Appeal No.111/2021 by the Principal Sessions Court, Kollam. 1[st] respondent herein is State of Kerala and the 2[nd] respondent is the complainant. 2. Heard the learned counsel for the revision petitioner on Crl.R.P.No.756/2022 3 admission and the learned Public Prosecutor. Notice to the 2[nd] respondent, the original complainant, stands dispensed with. 3. I would like to refer the parties in this Revision Petition as to their status before the trial court as `complainant' and `accused' for easy discussion. 4. Summary of the case advanced by the complainant before the trial court is as follows: Complainant and accused have acquaintance. Accused borrowed an amount of Rs.1,50,000/- from the complainant on 30.04.2015 and in discharge of the said liability, the accused issued Ext.P1 cheque dated 30.05.2015 for an amount of Rs.1,50,000/-. Though the complainant presented Ext.P1 cheque for encashment, it was returned dishonoured due to insufficient funds in the account of the accused. Even after receipt of Ext.P3 lawyer notice dated 02.08.2015, the accused neither sent any reply nor paid the amount covered by Ext.P1 cheque. Crl.R.P.No.756/2022 4 5. The court below took cognizance of the matter and secured presence of the accused for trial. During trial, PW1 and PW2 examined and Exts.P1 to P5 as well as Ext.C1(X1) and Ext.C2(X2) were marked on the side of the complainant. When the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, no evidence adduced. 6. After appraising the evidence, the trial court convicted the accused under Section 255(2) of Cr.P.C for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for convenience) and sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs.1,50,000/- in terms of Section 357 of Cr.P.C. In default of payment of the compensation, the accused was directed to undergo simple imprisonment for a period of 6 months. 7. Aggrieved by the conviction and sentence imposed by Crl.R.P.No.756/2022 5 the trial court, the accused filed Crl.Appeal No.111/2021 before the Sessions Court, Kollam and as per the judgment dated 10.08.2022, the learned Sessions Judge dismissed the appeal after confirming the conviction and sentence. 8. The learned counsel for the revision petitioner/accused would submit that the main challenge is based on appreciation and re-appreciation of evidence and, therefore, the revision petitioner is satisfied with the grant of 3 months' time to pay the compensation. 9. I have perused the Revision Petition and I could gather that the grounds raised in this Revision Petition to assail the concurrent verdicts are matters to be considered on appreciation and re-appreciation of evidence and this Court, while exercising the power of revision, cannot re-appreciate the evidence. 10. 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 Crl.R.P.No.756/2022 6 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 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. ...”_ 11. In another decision reported in [(2015) 3 SCC 123 : Crl.R.P.No.756/2022 7 (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 or of the Magistrate unless it is perverse or wholly unreasonable - 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.”_ 12. The said ratio has been followed in a latest decision of Crl.R.P.No.756/2022 8 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 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 or fundamental violation of the principle of law, then only the power of revision would be made available. 13. In this matter, the courts below given benefit of presumptions under Sections 118 and 139 of the N.I Act in favour of the complainant on the finding that the complainant discharged Crl.R.P.No.756/2022 9 his initial burden in the matter of execution of Ext.P1 cheque, which was issued by the accused towards the amount borrowed from the complainant. In this connection, it is relevant to refer the law regarding presumptions. 14. Regarding presumptions, the law is well settled. 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 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_ Crl.R.P.No.756/2022 10 _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 that in some cases the accused may not need to adduce evidence of his/her own.”_ 15. 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 Crl.R.P.No.756/2022 11 ## 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.”_ 16. 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: Crl.R.P.No.756/2022 12 _“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 2nd 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 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.”_ Crl.R.P.No.756/2022 13 17. Thus the law is settled that in this case when the complainant discharged his initial burden, in order to negative the benefit of presumptions available in favour of the complainant, the accused shall adduce evidence to rebut the presumption. In this case, the accused failed to do so. In view of the matter, it has to be held that the accused miserably failed to rebut the presumptions. Therefore, there is no reason to interfere with the conviction concurrently found by the courts below. 18. Regarding the sentence, it is relevant to note that the courts below imposed substantive sentence of imprisonment till rising of Court and ordered payment of compensation. In default of payment of compensation, six months' simple imprisonment also was ordered. In view of the matter, sentence also requires no interference. 19. However, the learned counsel for the revision petitioner seeks 3 months' time to pay the compensation. Crl.R.P.No.756/2022 14 20. In the result, the Revision Petition is dismissed. While confirming the concurrent findings of conviction and sentence entered into by the trial court and the Sessions Court, 3 months' more time from today is granted to the revision petitioner to pay the compensation or to undergo the default sentence imposed by the trial court. Therefore, the execution of sentence shall stand deferred till 20.02.2023. The revision petitioner shall appear before the trial court on 21.02.2023 to pay the compensation or to undergo the default sentence. If the revision petitioner/accused fails to appear before the trial court, the trial court is directed to execute the sentence without fail. Registry shall forward a copy of this order to the courts below for information. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_