Gireesan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA,** **1944** **CRL.REV.PET NO. 696 OF 2022** **AGAINST THE JUDGMENT DATED 08.07.2022 IN CRL.APPEAL NO.19/2022 OF SESSIONS COURT, THIRUVANANTHAPURAM AGAINST THE JUDGMENT DATED 07.01.2022 IN C.C.NO.1336/2018 OF TEMPORARY SPECIAL COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF CASES U/S.138 NI** **ACT, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **GIREESAN AGED 55 YEARS, S/O GOPI, AGRA-18, AZHANGAL GARDENS, KARUMOM, KAIMANAM P.O., THIRUVANANTHAPURAM - 695040** **BY ADVS. AYYAPPAN SANKAR S.HRIDYA** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT :** - **1 STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** - **2 V.KRISHNAKUMAR AGED 54 YEARS S/O VELAYUDHAN PILLAI, KAITHARAM, MANNAM NAGAR, PAZHATTUVILA VIA, BALARAMAPURAM, THIRUVANANTHAPURAM - 695501** **BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.11.2022, THE COURT ON 17.11.2022 DELIVERED THE FOLLOWING:** Crl.R.P.No.696 of 2022 -:2:- ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.R.P.No.696 of 2022 -------------------------------------------------------Dated this the 17[th] day of November, 2022** ## **O R D E R** This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience) and the revision petitioner herein is the accused in C.C.No.1336 of 2018 on the files of the Temporary Special Court for NI Act cases (Judicial First Class Magistrate Court), Thiruvananthapuram. The respondents herein are the original complainant as well as the State of Kerala. 2. The revision petitioner impugns judgment in C.C.No.1336 of 2018 dated 07.01.2022 Crl.R.P.No.696 of 2022 -:3:- and the judgment in Crl.Appeal No.19 of 2022 dated 08.07.2022 on the file of the Sessions Court, Thiruvananthapuram. 3. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor on admission. Notice to the first respondent/the original complainant stands dispensed with. 4. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. 5. Short facts led to initiation of proceedings under the Negotiable Instruments Act (hereinafter will be referred as NI Act for convenience) are as under: In this matter, the complainant lodged complaint alleging commission of offence punishable under Section 138 of the NI Act, when two cheques for Crl.R.P.No.696 of 2022 -:4:- Rs.15 lakh and Rs.10 lakh issued by the accused to the complainant to discharge the amount, the accused alleged to be borrowed from the complainant got dishonoured for want of funds. 6. The court below took cognizance of the matter and proceeded with trial. During trial, the complainant got examined as PW1 and Exts.P1 to P9 were marked. 7. Thereafter, the accused was given opportunity to adduce defence evidence after questioning her under Section 313(1)(b) of Cr.P.C. Thus, the accused himself got examined as DW1. 8. The learned Magistrate Court appraised the evidence and finally found that the accused committed offfence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment till rising of the Court and to pay fine of Rs.25 lakh to the complainant. In default of payment Crl.R.P.No.696 of 2022 -:5:- of fine, simple imprisonment for a further period of three months also was imposed. 9. The accused challenged the conviction and sentence imposed by the trial court before the Sessions Court, Thiruvananthapuram and as per judgment in Crl.Appeal No.19 of 2022, the learned Sessions Judge also confirmed the finding and resultantly, appeal was dismissed. 10. The learned counsel for the accused argued that the onus on the part of the complainant to prove the transaction and execution of the cheques in question was not fully discharged and the courts below failed to appreciate the evidence in this regard. It is argued further that the judgment was rendered solely on the ground of weakness of the defence ignoring the inherent lacuna in the complainant's case. 11. He argued further that mere possession of the cheque by the complainant and admission of the Crl.R.P.No.696 of 2022 -:6:- signature by the accused by itself are not grounds to hold that the accused committed offence punishable under Section 138 of the NI Act. 12. In fact, the learned counsel for the revision petitioner raised contentions as above as well as pointed out in the grounds shown in the revision petition. In order to address these challenges, reappreciation of evidence is necessary. 13. The power of this Court, while exercising revision, is not akin to that of an appellate court to reappreciate the evidence and to have a contra-finding. 14. 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 reappreciate the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], **State of Kerala v. Puttumana Illath** Crl.R.P.No.696 of 2022 -:7:- **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. ...”_ 15. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], **Sanjaysinh** Crl.R.P.No.696 of 2022 -:8:- **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 non-consideration 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_ Crl.R.P.No.696 of 2022 -:9:- _jurisdiction.”_ 16. 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 reappreciate 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, which would go to the root of the matter or any fundamental violation of the principle of law, then Crl.R.P.No.696 of 2022 -:10:- only the power of revision would be made available. 17. In this matter, the courts below given much emphasis to the evidence of PW1 and Exts.P1 to P9 to hold that Exts.P1 and P2 cheques were issued by the accused for the amount borrowed by the accused from the complainant, as stated by the complainant, who was examined as PW1. Though DW1 was examined to contend that the complainant had misused the cheques and fabricated the same to lodge the complaint, evidence in this regard was found to be not sufficient by the trial court as well as the appellate court, since DW1 during his evidence expressed his ignorance in as much as the transactions between the complainant and the accused. 18. In this context, the courts below given benefit of presumptions under Sections 118 and 139 of the N.I Act to the complainant. Law regarding presumptions is also settled as well. Crl.R.P.No.696 of 2022 -:11:- 19. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], **Rangappa v. Sri.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 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_ Crl.R.P.No.696 of 2022 -:12:- _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.”_ 20. 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: _“A meaningful reading of the provisions of the_ Crl.R.P.No.696 of 2022 -:13:- _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.”_ 21. 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], **M/s.Kalamani Tex & 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.696 of 2022 -: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 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 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 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_ Crl.R.P.No.696 of 2022 -:15:- _of any cogent evidence to show that the cheque was not issued in discharge of a debt.”_ 22. 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 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. 23. Going through the available materials within the limit of power of revision, nothing established to re-visit the concurrent verdicts entered into by the trial court as well as the appellate court and therefore, the conviction does not require any interference. 24. Regarding the sentence, the trial court Crl.R.P.No.696 of 2022 -:16:- imposed the least minimum possible sentence and therefore, the same also does not require any interference. 25. Faced with the situation, the learned counsel for the accused sought for ten months time to pay the amount. Considering the fine amount would come to Rs.25,00,000/- and in consideration of the fact that the transaction was in the year 2016, I am inclined to grant four months time from today to pay the compensation. 26. In the result, this revision petition fails and it is, accordingly, dismissed. 27. However, the revision petitioner/the accused is given four months time from today to pay the compensation or to undergo the default sentence. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 16.03.2023 to pay the compensation or to undergo the default Crl.R.P.No.696 of 2022 -:17:- sentence. The execution of the sentence shall stand deferred till 15.03.2023. On failure to do so, 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** rkj