FR.DR. Sebastian Kanjirathinkal v. N.P. Hamsa and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 615 OF 2011 ``` ``` AGAINST THE JUDGMENT IN CC 144/2002 OF JUDICIAL MAGISTRATE OF ``` ``` FIRST CLASS ,CHAVAKKAD ``` ``` CRA 898/2005 OF THE FIRST ADDITIONAL SESSIONS COURT, THRISSUR ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` FR.DR.SEBASTIAN KANJIRATHINKAL AGED 61, S/O. PAPPU KANJIRATHINKAL, KANJOOR P.O, VALLAPPILLI VILLAGE, ALUVA TALUK,ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.THOMAS ABRAHAM SRI.DIPU.R SRI.K.S.HARIDAS SMT.MERCIAMMA MATHEW SRI.V.RENJITH KUMAR ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** ``` 1N.P.HAMSA , AGED 37 YEARS, S/O ANDIPATTIL PADUVINKAL SAITHALI,PAVARATTY AMSOM, MARUTHAYUR DESOM,CHAVAKKAD TALUK,THRISSUR. ``` - `2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.` ``` BY ADV SRI.RAJIT ``` ## **`OTHER PRESENT:`** ``` SR PP SMT SEETHA S ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION`** ``` ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. NO. 615 OF 2011 2 ``` **Dated this the 16[th] day of October, 2023** ## **ORDER** The revision petition is filed assailing the correctness and propriety of the judgments in Crl.Appeal No.898/2005 of the Court of the First Additional Sessions Judge, Thrissur, (Appellate Court) confirming the judgment passed in C.C No.144/2002 of the Court of the Judicial Magistrate of First Class, Chavakkad (Trial Court), finding the revision petitioner guilty and convicting and sentencing him for the offence under Sec.138 of the Negotiable Instruments Act ( for brevity, N.I Act). For the sake of convenience, the parties are referred to as per their status before the Trial Court. The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. ## Relevant antecedent facts 2. The complainant had filed the complaint against the accused alleging that on 7.12.2000, the accused ## **`Crl.R.P. NO. 615 OF 2011 3`** borrowed a sum of Rs.6,00,000/- promising to repay the amount within one month. In discharge of the said liability, the accused had issued Ext P8 cheque dated 30.6.2001 drawn on his bank. The cheque, on presentation to the Bank for payment, got returned with an endorsement ‘account closed and payment stopped by drawer’. The complainant issued Ext P11 statutory lawyer notice to the accused and the accused sent Ext P13 reply notice to the complainant. However, the accused failed to pay the demanded amount. Hence, the accused committed the above offence. 3. The learned Magistrate took cognizance of the offence. The accused denied the substance of accusation read against him. In the trial, the complainant examined himself as PW1 and marked Exts. P1 to P14 in evidence. The accused denied the incriminating circumstances that were put against him in the questioning under Sec.313 of the Code of Criminal Procedure (in short, ‘Code’). The accused examined DWs1 and 2 in the defence evidence. ## **`Crl.R.P. NO. 615 OF 2011 4`** 4. The learned Magistrate, after analysing the materials on record, found the accused guilty for the offence under Sec.138 of the N.I Act and convicted and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a compensation of Rs.6,25,000/- to the complainant under Sec.357(3) of the Code, and in default of the payment of the compensation to undergo simple imprisonment for a further period of three months. 5. Aggrieved by the said judgment, the accused preferred Crl. Appeal No.898/2005 before the Appellate Court. 6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment confirmed the conviction and sentence passed by the Trial Court and dismissed the appeal. 7. It is assailing the concurrent judgments of the courts below, the present revision petition is filed. 8. Heard; Sri.Thomas Abraham, the learned counsel ## **`Crl.R.P. NO. 615 OF 2011 5`** appearing for the revision petitioner; Sri.Rajit, the learned counsel appearing for the first respondent and Smt.Seetha.S, the learned Public Prosecutor appearing for the second respondent-State. 9. Is there any illegality, irregularity or impropriety in the judgments passed by the courts below? 10. Before proceeding to decide the revision petition, this Court reminds itself that the revisional power is to be sparingly exercised only for the purpose of correcting patent errors, manifest illegality and when there is misreading of records. Merely because a different view is possible on a reading of the records, this Court is not excepted to interfere with the conclusions of the facts finding courts. 11. Keeping the above principles in mind, this Court proceeds to decide the revision petition. 12. The complainant’s case is that, the accused had borrowed a sum of Rs.6,00,000/-, and in discharge of the said liability, he had issued Ext.P8 cheque, which on ## **`Crl.R.P. NO. 615 OF 2011 6`** presentation to the bank, got dishonoured for the reason that the bank account was closed and the payment was stopped. The defence of the accused is that he had no business transaction with the complainant. In fact, he handed over the cheque to help Thomas Solaman (DW1) to purchase computers. However, DW1 handed over the cheque to the complainant, and the present complaint was filed. The complainant does not have the means to even raise Rs.10/- per day. Ext.P8 cheque was not issued towards any legally enforceable debt. Hence, the accused is entitled to the benefit of doubt and the prosecution has to necessarily fail. 13. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Secs.118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: **“118. Presumptions as to negotiable instruments** – Until the contrary is proved, the following presumptions shall be made;- (a) **of consideration** -that every negotiable instrument was made or drawn for consideration, and that every such ## **`Crl.R.P. NO. 615 OF 2011 7`** instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; 139. **Presumption in favour of holder** . —It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability. 14. A three-Judge Bench of the Hon’ble Supreme Court in **Rangappa vs. Sri.Mohan** [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of ‘reverse onus’, by holding thus: “ 18. In light of these extracts, we are in agreement with the respondent - claimant that 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 (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 ## **`Crl.R.P. NO. 615 OF 2011 8`** legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies 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. As clarified in the citations, the 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. Recently, a three-Judge Bench of the Hon’ble Supreme Court in **Kalamani Tex and Anr vs. P. Balasubramanian** [2021 (2) KHC 517] has reiterated the ## **`Crl.R.P. NO. 615 OF 2011 9`** above legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declare the law on the point in the following terms: “14. 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 Section 118 and Section 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. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243) **.”** (emphasis supplied) 16. In **Bir Singh v Mukesh Kumar** [(2019) 1 KHC 774 SC] the Hon’ble Supreme Court has observed that if a signed blank cheque is voluntarily given to a payee towards some payment and the payee fills up the amount and other particulars, it will not invalidate the cheque. The onus of proof would always be on the accused to prove that the cheque was not issued in discharge of a debt/liability by advancing a probable defence. ## **`Crl.R.P. NO. 615 OF 2011 10`** 17. In the case on hand, the complainant’s case is that, Ext.P8 cheque was issued by the accused in discharge of a legally enforceable debt and the cheque got dishonoured when presented for collection and the accused failed to pay the demanded amount, despite receipt of the statutory lawyer notice. 18. The accused denied the allegation and has raised a defence that he has no business transaction with the complainant. Instead, Ext.P8 cheque was issued by him to DW1 to purchase computers. It was misutilising the cheque, the complainant filed the false complaint. 19. Ext.P14 document, which is not disputed by the accused, would establish that the complainant, the accused and DW1 had purchased a shop room in their joint names. This by itself shows that there was a business transaction between the parties. Thus, the defence of the accused that he does not know the complainant and had not issued Ext.P8 cheque to the complainant can only be accepted with a pinch of salt. ## **`Crl.R.P. NO. 615 OF 2011 11`** 20. The courts below, after a threadbare analysis of the materials placed on record, have concurrently concluded that the accused had failed to shift the reverse onus of proof cast on his shoulders under Section 139 of the N.I. Act. Accordingly, the courts below found the accused guilty, and convicted and sentenced him for the above offence. I do not find any error, illegality or irregularity in the conclusion arrived at by the courts below. Thus, I confirm the conviction imposed by the courts below. 21. At the said point of time, the learned counsel for the revision petitioner submitted that the revision petitioner is now 74 years and bedridden. Therefore, this Court may show some leniency in passing the sentence. 22. In **Damodar S. Prabhu v. Sayed Babalal H** ((2010)5 SCC 663) the Hon'ble Supreme Court held that unlike other forms of crime, the punishment under Section 138 of the N.I. Act is not a means for seeking retribution, but is a means to ensure payment of money. ## **`Crl.R.P. NO. 615 OF 2011 12`** Complainant's interest lies primarily in recovering the rather than the drawer money seeing getting incarcerated. In an offence under Section 138 of the N.I. Act, the compensatory aspect of the remedy should be given priority over the punitive aspect. 23. Keeping in mind the above principles and taking into account the fact that the revision petitioner/accused is now 74 years and bedridden, I am of the definite view that a lenient view as regards substantive sentence can be taken, by sentencing the revision petitioner to undergo imprisonment for one day(till the rising of the Court) and pay compensation for the cheque amount, which would do complete justice to both sides. In the result, - (i) The revision petition is dismissed. (ii) The conviction imposed by the courts below is upheld. (iii) The sentence imposed by the courts below is modified and reduced by sentencing the revision ## **`Crl.R.P. NO. 615 OF 2011 13`** petitioner to undergo imprisonment for one day (till the rising of the Court) and pay a compensation of Rs.6,00,000/- within a period of sixty days from today under Section 357(3) of the Code, and in default to undergo simple imprisonment for a period of six months. (iv) If the compensation amount is deposited, the same shall be released to the first respondent /complainant, in accordance with law. (v) Needless to mention, if the revision petitioner has already deposited any amount before the courts below, only the balance amount need be deposited. (vi) In case of failure of the revision petitioner to appear before the Trial Court to undergo the sentence and pay the compensation amount, the Trial Court shall execute the sentence and recover the compensation amount. (vii) The execution of the sentence shall stand deferred till 16.12.2023. (viii) The Registry is directed to forthwith forward a ## **`Crl.R.P. NO. 615 OF 2011 14`** copy of this order to the Trial Court for compliance. **Sd/-** **C.S.DIAS, JUDGE** rmm17/10/2023 ## **`Crl.R.P. NO. 615 OF 2011 15`** ## **`A PPENDIX`** ## `PETITIONER ANNEXURES` ``` Annexures 1, 2 &3 TRUE COPIES OF THE NEWS ITEMS/REPORTS PUBLISHED IN MALAYALA MANORAMA DAILY DATED 27.8.2007 AND 29.8.2007 AS WELL AS MATHRUBHOOMY DAILY DATED 27.8.2007 ```