E.K. Hariharan v. Benny Joseph and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944 CRL.REV.PET NO.388 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRA 134/2018 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM ST 1871/2015 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, CHOTTANIKKARA(TEMPORARY)** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** E.K.HARIHARAN, AGED 58 YEARS, S/O.KARUNAKARAN, EDAVAZHIKKAL HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, ERNAKULAM-682 307. BY ADVS. SRI.ANOOP JOSEPH SRI.K.B.ARUNKUMAR SMT.ZERENE LINDA MITCHEL SMT.K.K.DAJULA SMT.ASWANI THUVVAKKADAN ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** 1 BENNY JOSEPH, AGED 47 YEARS, S/O. JOSEPH, MUKKADAYIL HOUSE, MONIPPILLY KARA, THIRUVANIYOOR, ERNAKULAM, PIN CODE-682 308. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. BY ADVS.SRI.PAUL K.VARGHESE SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.R.P.No.388 of 2020** 2 ## **O R D E R** ## **Dated this the 27[th] day of January, 2023** This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the sole accused in S.T. No.1871/2015 on the files of the Judicial First Class Magistrate Court, Chottanikkara, arraying the original complainant as the 1[st] respondent and State of Kerala as the 2[nd ] respondent. 2. The revision petitioner impugns judgment in S.T.No.1871/2015 dated 12.03.2018 on the files of the Judicial First Class Magistrate Court, Chottanikkara and the judgment in Criminal Appeal No.134/2018 dated 25.01.2020 on the files of the Additional Sessions Judge, Ernakulam arising therefrom. 3. Heard the learned counsel for the revision petitioner, learned counsel for the 1[st] respondent as well as the learned Public **Crl.R.P.No.388 of 2020** 3 Prosecutor. **==> picture [391 x 13] intentionally omitted <==** revision as 'complainant' and 'accused' for easy reference. **==> picture [391 x 13] intentionally omitted <==** the complainant before the trial court are as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short), by the accused, when cheque for Rs.15,00,000/- dated 17.10.2015 alleged to be issued by the accused to the complainant to repay the said sum, which was originally borrowed during the month of January 2014 for his business purpose, got dishonoured for want of sufficient funds, when it was presented for collection. 6. The trial court proceeded with trial. During trial, PW1 was examined and Exts.P1 to P7(a) were marked on the side of the 4 ## **Crl.R.P.No.388 of 2020** complainant. 7. On completion of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, Exts.D1 and D2 marked on the side of the accused. 8. The trial court appraised the evidence and finally found that the accused committed offence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for a period of two years and also to pay fine of Rs.15,00,000/- (Rupees Fifteen Lakh Only). The fine was ordered to be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. It was ordered further that in case of default in payment of fine, the accused would undergo simple imprisonment for a further period of six months. 9. The judgment in S.T.No.1871/2015 dated 25.01.2020 was challenged before the Additional Sessions Court, Ernakulam. The learned Sessions ## **Crl.R.P.No.388 of 2020** 5 Judge also confirmed the said conviction and modified sentence as per judgment dated 25.01.2020 in Crl.Appeal No.134/2018, as under: _In the result, appeal is allowed in part. The conviction of the trial court is confirmed. However, the sentence is modified and reduced and the appellant/accused is sentenced to undergo imprisonment till the rising of the court u/s.138 of the N.I.Act and he shall also pay fine of Rs.15,00,000/(Rupees Fifteen Lakhs only) as compensation u/s.357(1) Cr.P.C. If the appellant fails to pay the fine, as compensation, he shall undergo simple imprisonment for 6 (six) months._ _The learned Magistrate shall take steps to execute the sentence._ _The amount, if any, remitted by the appellant/accused before the court shall be adjusted towards payment of compensation to the first respondent/complainant._ 10. The concurrent verdicts of conviction entered into by the trial court as well as by the appellate court and the modified sentence imposed by the appellate court are under challenge in this revision petition. **==> picture [391 x 11] intentionally omitted <==** **Crl.R.P.No.388 of 2020** **==> picture [7 x 9] intentionally omitted <==** pointed out that the concurrent findings entered into by the trial court as well as the appellate court are grossly incorrect. Appreciation of evidence by the courts below is also challenged. Further contention is that the denial of execution of Ext.P2 cheque by the accused was not considered by the courts below. 12. In addition to that, it is argued that the complainant miserably failed to discharge his initial burden so as to avail presumptions under Sections 118 and 139 of the NI Act, though the courts below given the same in favour of the complainant without looking into the said aspect. It is submitted further that Exts.D1 and D2 categorically established that the complainant is a money lender and he had been in the habit of keeping the signed blank cheques and stamp papers of his debtors, without any consideration. 13. In this matter, the courts below given emphasis to the evidence of PW1 to hold that the ## **Crl.R.P.No.388 of 2020** 7 complainant proved the transaction led to execution of Ext.P2. Ext.P1 is an agreement relied on by the courts below dated 08.05.2014 between the complainant and the accused, where the accused admitted that he had obtained Rs.15 lakh from the complainant and promised to pay back the said amount in two instalments of Rs.10 lakh and Rs.5 lakh. 14. When the accused was questioned under Section 313 Cr.P.C., the accused stated that he did not borrow Rs.15 lakh, but he had borrowed Rs.12 lakh. He further stated that he had returned Rs.9 lakh and the remaining amount is only Rs.3 lakh. 15. Thus, without much ado, it could be held that the transaction, as stated by the complainant based on Ext.P1 agreement and Ext.P2 cheque, is partially admitted by the accused coming to the tune of Rs.12 lakh. Further the accused raised plea of discharge in relation to Rs.9 lakh, though no materials placed to see the ## **Crl.R.P.No.388 of 2020** 8 plea of discharge. It is strange to note that after admitting the transaction in part, then the accused would contend that the complainant failed to prove the transaction and execution of the cheque and the courts below wrongly given benefit of presumptions in favour of the complainant. 16. Apart from the partial admission of the transaction made by the accused, it could be gathered that PW1 had given evidence in support of the contention by producing Ext.P1 agreement also. In fact, during cross-examination of PW1, nothing extracted to disbelieve PW1, so as to disbelieve the transaction as well as execution of Ext.P2 cheque, in consequence of Ext.P1 agreement. 17. It is interesting to note that the learned counsel for the accused raised a contention that the accused was forced to sign a blank cheque and the same was duly filled up and presented by the complainant without his ## **Crl.R.P.No.388 of 2020** 9 knowledge or consent. It is argued further that the accused successfully rebutted the presumptions by evidence. 18. In so far as these contentions are concerned, the same would go against the evidence of PW1 as well as the submission of the accused during Section 313 Cr.P.C. examination. Thus, the presumptions not at all rebutted. 19. In this matter, this Court is exercising power of revision and the power of revision is not available to appreciate or re-appreciate the evidence to have a contra-finding. 20. 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**_ ## **Crl.R.P.No.388 of 2020** 10 _**Phalke**_ ; [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda**_ , are on this point. 21. No doubt, law regarding presumptions under Sections 118 and 139 of the NI 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 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. 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 ## **Crl.R.P.No.388 of 2020** 11 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**_ . 22. It is relevant to refer a latest decision of the Apex Court reported in [2022(5) KHC 560(SC)], _**Oriental Bank of Commerce v.**_ _**Prabodh Kumar Tewari,**_ whereas it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. ## **Crl.R.P.No.388 of 2020** 12 23. 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 finding is perfectly justified in view of the discussions held above. 24. Law is clear on the point that when the complainant discharges the 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. 25. On reading the concurrent findings of conviction entered into by the trial court as well as by the appellate court, both the courts below fully justified that the complainant discharged his initial burden in the matter of ## **Crl.R.P.No.388 of 2020** 13 transaction and execution of the cheque and, therefore, the complainant is entitled to get benefit of presumptions under Sections 118 and 139 of the N.I Act. In view of the decision, the concurrent verdicts of conviction as well as the modified sentence do not require interference in any manner. 26. In the result, this revision petition fails and is accordingly dismissed. 27. Faced with the situation, the learned counsel for the accused sought three months' time to pay the compensation. 28. Considering the request of the learned counsel for the accused and taking note of the fact that the transaction is of the year 2014, I am inclined to grant three months' time from today to the accused to pay the compensation. 29. The revision petitioner/accused is directed to appear before the trial court on 26.04.2023 to pay the compensation and to undergo the sentence. The execution of the ## **Crl.R.P.No.388 of 2020** **==> picture [13 x 9] intentionally omitted <==** sentence shall stand deferred till 25.04.2023. If the accused fails to surrender, the trial court is directed to execute the sentence, without fail. Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww