GOPALAKRISHNAN M.K. v State of Kerala and Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 CRL.REV.PET NO. 3294 OF 2010 CRA 340/2010 OF ADDITIONAL SESSIONS COURT,MOOVATTUPUZHA ST 2694/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **KOLENCHERRY** ## **REVISION PETITIONER/S:** GOPALAKRISHNAN M.K. AGED 45 YEARS, TEACHER, MULLANKUZHIYIL HOUSE,, NADAKKAVU P.O., UDAYAMPEROOR, TRIPUNITHURA,, ERNAKULAM DISTRICT. BY ADVS. SRI.S.NIRMAL KUMAR SRI.JOSE P.JOSEPH ## **RESPONDENT/S:** 1 THE STATE OF KERALA AND ANOTHER PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 K.V.ABRAHAM AGED 48 YEARS KOCHUKUDIYIL HOUSE, KARIKODU, MULANTHURUTHY,, ERNAKULAM DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN SRI.S.SREEDEV ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01.06.2023, THE COURT ON 08.06.2023, ALONG WITH Crl.Rev.Pet.3296/2010 DELIVERED THE FOLLOWING: Crl.R.P.No.3294 and 3296 of 2010 -2- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 CRL.REV.PET NO. 3296 OF 2010** **AGAINST THE ORDER/JUDGMENTCRA 339/2010 OF ADDITIONAL DISTRICT & SESSIONS COURT,MOOVATTUPUZHA ST 15/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **,KOLENCHERRY** ## **REVISION PETITIONER/S:** GOPALAKRISHNAN M.K AGED 45 YEARS, TEACHER, MULLANKUZHIYIL HOUSE,, NADAKKAVU P.O., UDAYAMPEROOR, TRIPUNITHURA,, ERNAAKULAM DISTRICT. BY ADVS. SRI.S.NIRMAL KUMAR SRI.JOSE P.JOSEPH ## **RESPONDENT/S:** 1 STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT, ERNAKULAM. 2 K.V.ABRAHAM AGED 48 YEARS KOCHUKUDIYIL HOUSE, KARICODU, MULANTHURUTHY,ERNAKULAM DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN SRI.S.SREEDEV ## **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD** **ON 01.06.2023, THE COURT ON 08.06.2023, ALONG WITH Crl.Rev.Pet.3296/2010 DELIVERED THE FOLLOWING:** Crl.R.P.No.3294 and 3296 of 2010 -3- ## **ORDER** Dated this the 08[th] day of June, 2023 These revision petitions arise out of the common judgment in S.T.Nos.2694 of 2006 and 15 of 2007 of the Judicial First Class Magistrate Court, Kolenchery. Those cases were filed by the second respondent alleging commission of offence under Section 138 of the Negotiable Instruments Act against the revision petitioner. The allegation was to the effect that the revision petitioner had purchased marble from the second respondent's shop on 17.04.2005. The marble was purchased on credit and on the second respondent demanding payment, the revision petitioner issued Ext.P1 cheque dated 03.11.2006 for Rs.30,000/and Ext.P2 cheque dated 02.11.2006 for Rs.10,000/-. The cheques, on presentation, were dishonoured for insufficiency of funds in the Crl.R.P.No.3294 and 3296 of 2010 -4- revision petitioner's account. In spite of the second respondent demanding payment by issuing a statutory notice, the revision petitioner refused to pay the amount. 2. Before the trial court, the second respondent was examined as PW1 and Exts.P1 to P14 marked. On the revision petitioner's side, a common acquaintance of the revision petitioner and the second respondent was examined as DW1 and the revision petitioner himself as DW2 and Exts.D1 to D7 marked. 3. The trial court, on appreciation of evidence and consideration of the legal contentions, found the revision petitioner guilty and thereupon convicted and sentenced him to undergo simple imprisonment for one month and to pay fine of Rs.30,000/- in S.T.No.2694 of 2006 and imprisonment till rising of the court and fine of Rs.10,000/- in S.T.No.15 of 2007. The fine, if realised, was directed to be given to Crl.R.P.No.3294 and 3296 of 2010 -5- the second respondent as compensation under Section 357(1) of Cr.P.C. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal Nos.340 of 2010 and 339 of 2010 before the Additional Sessions Court, Muvattupuzha. The appellate court, after re- appreciating the evidence, affirmed the findings of the trial court and dismissed the appeals. Hence, these revision petitions. 4. Learned Counsel for the revision petitioner contended that the revision petitioner's conviction was due to the mis- appreciation of evidence and misunderstanding of law by the trial court. The specific case of the revision petitioner was that he had purchased marble from the second respondent's shop at Mulanthuruthy, whereas the allegation is that he purchased marble from the shop at Kadamattom. Attempt is made to draw attention to Annexure A4 document to contend that during 2005, the second ## Crl.R.P.No.3294 and 3296 of 2010 -6- respondent was conducting business at Mulanthuruthy and not Kadamattom. It is pointed out that from the stage of reply notice onwards, the revision petitioner had set up a specific defence that, while purchasing the marble, he had entrusted three cash cheques for Rs.10,000/- each with the second respondent. Over and above the cash cheques, the revision petitioner had also handed over two signed blank cheques as security. Exts.D1 and D2 would show that the cash cheques were presented and encashed. Even thereafter the second respondent refused to return the signed blank cheques given as security. The complaints were filed utilising those cheques. 5. Learned Counsel for the second respondent contended that, two courts having concurrently found against the revision petitioner, there is no scope for interference. It is submitted that the documents produced along with the revision petition and new contentions, ## Crl.R.P.No.3294 and 3296 of 2010 -7- which are not supported by evidence, cannot be taken into account. Exts.P13 and P14 documents conclusively prove that the revision petitioner had purchased marble on credit from the second respondent's shop at Kadamattom and paid only Rs.5,000/- at the time of purchase. Exts.P1 and P2 cheques were issued towards discharge of the balance amount. Those cheques having been dishnonoured and the revision petitioner having failed to pay the amount despite issuance of notice, the offence under Section 138 is clearly made out. 6. The fact that Exts.P1 and P2 cheques contain the revision petitioner's signature and were handed over to the second respondent is not in dispute. As held by the Supreme Court in _**Bir**_ ## _**Singh v Mukesh Kumar [(2019) 4 SCC 197]**_ , even a blank cheque leaf voluntarily signed and handed over by the accused towards some payment would Crl.R.P.No.3294 and 3296 of 2010 -8- attract the presumption under Section 139. The said presumption under Section 139 can be rebutted based on preponderance of probabilities. The question therefore is whether the revision petitioner had succeeded in rebutting the presumption. One of the circumstances relied on for the purpose of such rebuttal is encashing of Exts.D1 and D2 cheques. In this regard, it is pertinent to note that the cheques were not presented or encashed by the second respondent. Although revision petitioner alleged that the cheques were presented and encashed through the second respondent's employee, the attempt to examine those persons as witnesses failed. Hence, no reliance can be placed on Exts.D1 and D2 to hold that the revision petitioner had entrusted cash cheques at the time he took the delivery of the marble and the cheques were encashed by the second respondent. 7. The other aspect projected, so as to ## Crl.R.P.No.3294 and 3296 of 2010 -9- make out a probable case was that the marble was purchased from the second respondent's shop at Mulanthurthy and not Kadamattom. That contention cannot succeed in the light of Ext.P13, counterfoil of receipt dated 17.04.2005 and Ext.P14 print out of day book. Ext.P13 receipt is issued in connection with delivery of marble from Kadamattom marbles at Church Junction, Kadamattom and Ext.P14 is the day book of Kadamattom Marbles. The sanctity of the documents is unquestionable, since the revision petitioner has countersigned Ext.P13 receipt. Even though it was the signature in Ext.P13 was disputed and an application submitted to send the document for expert opinion, that application was not pursued. As per Exts.P13 and P14, the total amount due for the purchase made by the revision petitioner is Rs.45,667/-. Out of that amount, which, Rs.5,000/- was paid at the time of purchase itself and towards the balance amount of Crl.R.P.No.3294 and 3296 of 2010 **==> picture [23 x 9] intentionally omitted <==** Rs.40,667/-, Exts.P1 and P2 cheques for Rs.40,000/- were issued. **==> picture [381 x 12] intentionally omitted <==** revision petitioner contended that documents are available to prove that the revision petitioner had not conducted business at Kadamattom in 2006, I am not inclined to accept those documents at the retirement stage. 9. The above discussion leads to the conclusion that, while the second respondent succeeded in proving execution of the cheque, the revision petitioner failed in rebutting the presumption under Section 139. The courts below having reached the same conclusion, there is no reason for this Court to interfere. At the same time, I find the punishment of one month imprisonment imposed on the revision petitioner in S.T.No.2694 of 2006 to be unjustified, the proceedings under Section 138 being quasicriminal in nature. In my opinion, interest of Crl.R.P.No.3294 and 3296 of 2010 **==> picture [23 x 8] intentionally omitted <==** justice can be met by enhancing the fine amount and reducing the substantive sentence of imprisonment. In the result, the finding of guilt and conviction is upheld. The sentence in S.T.No.2694 of 2006 is modified as under; The revision petitioner shall undergo simple imprisonment till rising of the court and pay fine of Rs.35,000/-. In case of default, the revision petitioner shall undergo simple imprisonment for one month. The fine amount, if remitted or recovered, shall be paid to the second respondent as compensation under Section 357(1)) Cr.P.C. **==> picture [381 x 10] intentionally omitted <==** maintained as such. Sd/- ## **V.G.ARUN JUDGE** Scl/ Crl.R.P.No.3294 and 3296 of 2010 -12- APPENDIX OF CRL.R.P 3296 OF 2010 PETITIONER'S EXHIBITS: ANNEXURE A1 APPLICATION DATED 06.08.2010 SUBMITTED BEFORE THE INFORMATION OFFICER, AIKKARANADU GRAMA PANCHAYAT (TRUE PHOTO COPY) ANNEXURE A2 CERTIFICATE DATED 02.09.10 ISSUED BY THE SECRETARY, AIKKARANADU GRAMA PANCHAYAT (TRUE PHOTOCOPY) ANNEXURE A3 APPLICATION DATED 13.08.2010 SUBMITTED BEFORE THE INFORMATION OFFICER, COMMERCIAL TAX OFFICE VAT, CIRCLE 1, TRIPUNITHURA (TRUE PHOTO COPY) ANNEXURE A4 CERTIFIED COPY OF THE STATEMENT OF RETURNS OF MATHA MARBLES AND GRANITES RESPONDENT'S EXHIBITS Crl.R.P.No.3294 and 3296 of 2010 -13- APPENDIX OF CRL.R.P 3294 OF 2010 PETITIONER'S EXHIBITS: ANNEXURE A1 APPLICATION DATED 06.08.2010 SUBMITTED BEFORE THE INFORMATION OFFICER, AIKKARANADU GRAMA PANCHAYAT (TRUE PHOTO COPY) ANNEXURE A2 CERTIFICATE DATED 02.09.10 ISSUED BY THE SECRETARY, AIKKARANADU GRAMA PANCHAYAT (TRUE PHOTOCOPY) ANNEXURE A3 APPLICATION DATED 13.08.2010 SUBMITTED BEFORE THE INFORMATION OFFICER, COMMERCIAL TAX OFFICE VAT, CIRCLE 1, TRIPUNITHURA (TRUE PHOTO COPY) ANNEXURE A4 CERTIFIED COPY OF THE STATEMENT OF RETURNS OF MATHA MARBLES AND GRANITES RESPONDENT'S EXHIBITS