Hamsa K. v. Ismail P. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** **Crl.Rev.Pet.No.1358 OF 2019** **AGAINST THE JUDGMENT IN CRA 148/2017 DATED 25-10-2019 OF SESSIONS COURT,THALASSERY** **AGAINST THE JUDGMENT IN ST 38/2016 DATED 03-05-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, KOOTHUPARAMBU** ## **PETITIONER/APPELLANT/ACCUSED:** **HAMSA K. AGED 50 YEARS S/O.. MOIDU, P.K. HOUSE, PURAKKALAM, KOTTAYAM, MALABAR P.O, THALASSERY TALUK, KANNUR DISTRICT, PIN-670643.** **BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 ISMAIL P. AGED 38 YEARS S/O. USMAN HAJI, RAMLA MANZIL, KOTTAM, MUNDALUR P O, KANNUR DISTRICT, PIN-670622. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **SRI AJITH MURALI-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.02.2020, THE COURT ON 11.02.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1358/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1358 of 2019 ------------------------------------------------Dated this the 11[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.38/2016 on the file of the Court of the Judicial First Class Magistrate-II, Kuthuparamba. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced the petitioner to imprisonment till the rising of the court and also directed him to pay an amount of Rs.4,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Crl.A.No.148/2017 before the Court of Session, Thalassery challenging the order of conviction Crl.R.P.No.1358/2019 3 and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 3. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 4. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant and the accused were known to each other for more than five years. On 19.08.2012, the accused borrowed an amount of Rs.4,00,000/- from the complainant. The accused had promised that he would repay the amount within six months. When the complainant demanded repayment of the amount, the accused issued a cheque dated 20.04.2013 for Rs.4,00,000/- in favour of the complainant in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. Crl.R.P.No.1358/2019 4 The notice was returned to the complainant with the endorsement “addressee left India”. The accused did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P6 documents were marked on his side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence that, on 19.08.2012, the accused borrowed an amount of Rs.4,00,000/- from him and when he demanded repayment of the amount, the accused issued Ext.P1 cheque in discharge of the liability. 9. The plea of the accused was that he had no transaction with the complainant but he had given the cheque as security to one Saheer when he borrowed Rs.1,00,000/- from Saheer and that the complainant misused the aforesaid cheque and filed the case. 10. No evidence was adduced by the accused to prove the aforesaid plea. Saheer was not examined by the accused. Nothing was brought out in the evidence of PW1 to find that the Crl.R.P.No.1358/2019 5 cheque was one issued by the accused to Saheer as a security in the transaction between the accused and Saheer. 11. PW1 gave evidence that the accused filled up the cheque and signed it in his presence. Execution of the cheque by the accused was proved by the evidence of PW1. Then the burden was upon the accused to rebut the presumption under Section 139 of the Act. No evidence was adduced by the accused to rebut the presumption. 12. The attempt of the accused before the trial court was to rebut the presumption under Section 139 of the Act by highlighting the inconsistencies in the evidence of PW1. The trial court referred to the contentions raised by the accused in this regard stating as follows: _“The learned counsel for the accused vehemently argued that in the chief affidavit, it is stated that the accused promised to repay the amount within one month and when the amount was demanded Ext.P1 cheque was issued. Further it is stated in chief affidavit that the cheque was issued as a security for the transaction. Ext.P1 cheque is dated 25.04.2013 and the same is_ Crl.R.P.No.1358/2019 6 _presented only on 22.07.2013 and the same can be seen from Ext.P2 cheque return memo. This according to him goes to show that the cheque is issued only as a security and hence it cannot be said that there is a valid execution of Ext.P1 cheque for discharging a legally recoverable debt.”_ 13. The aforesaid contentions were dealt with by the trial ## court in its judgment by stating as follows: _“I have carefully gone through the evidence tendered in the above evidence. It is the categorical case of the complainant that the body of the cheque was filled by the accused and signed by the accused in front of him. I have also carefully gone through Ext.P1 cheque. On going through Ext.P1, I don't find any reason to disbelieve the evidence of the complainant that the cheque was filled up by the accused. It is the case of the complainant in the complaint that the amount was borrowed by the accused on 19.08.2012, however when it came to evidence he has stated that he does not remember the date of lending the money. The same is not of much consequences. The only mistake committed by the complainant is that he has stated in the affidavit that the accused promised to repay the amount within one month, whereas in the_ Crl.R.P.No.1358/2019 7 _complaint it is stated that the accused promised to repay the loan amount within six months. Merely because of such an error in the affidavit, it cannot be said that the case of the complainant could be thrown out.”_ ## 14. The appellate court has dealt with the contentions raised by the accused as follows: _“PW1 was asked about the source of money to lend Rs.4,00,000/- to the appellant. He explained that the amount was withdrawn by him from his account with Syndicate Bank, Mambaram Branch two days prior to 25.04.2013. He further stated that, the amount lent to the appellant was obtained by him as his family property, which fact was known to the appellant. He stated that, the amount was given to the appellant on 25.04.2013. In the complaint, the date of borrowal is stated as 19.08.2012. On all probabilities, the date stated by PW1 in cross examination i.e. 25.04.2013 was mistaken by him with the date of Ext.P1 cheque. But there was no further cross examination against this aspect. In reexamination he explained that, the date of cheque is 25.04.2013 and he do not remember as to when exactly the amount was borrowed.”_ 15. I find no illegality, impropriety or perversity in the Crl.R.P.No.1358/2019 8 appreciation of evidence by the courts below. It is to be noted that the petitioner/accused did not dispute the fact that Ext.P1 cheque bears his signature. He also did not dispute the handwriting of the entries in Ext.P1 cheque. In fact, PW1 had given evidence that the accused filled up the cheque and signed it in front of him. The petitioner/accused did not adduce evidence to prove his plea that the cheque was one issued by him as a security in the transaction between him and Saheer. In such circumstances, the inconsistencies in the evidence given by PW1 regarding the date of withdrawing the amount from the bank or the date of issuing of the cheque or the date of borrowing of the amount are not material and they do not assist the petitioner/accused to rebut the presumption under Section 139 of the Act. This is especially so when PW1 clarified in reexamination that he could not exactly remember the date on which the accused borrowed the amount from him. 16. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made Crl.R.P.No.1358/2019 9 by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. 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 glaringly 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 17. The trial court has shown maximum leniency in awarding sentence on the petitioner/accused. There is also no Crl.R.P.No.1358/2019 10 sufficient ground to interfere with the sentence imposed on the petitioner/accused. 18. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. However, the petitioner/accused is granted a period of five months from today to pay the amount of compensation to the complainant and to satisfy the trial court with regard to the payment of compensation made by him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge