Jacob B alias Jacob Baby v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 CRL.REV.PET NO. 1426 OF 2019 AGAINST THE JUDGMENT DATED 18.05.2018 IN ST 307/2016 OF CHIEF JUDICIAL MAGISTRATE PATHANAMTHITTA JUDGMENT DATED 26.08.2019 IN CRA 38/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PATHANAMTHITTA / IV ADDL. M.A.C.T.** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** JACOB B @ JACOB BABY, AGED 54 YEARS, S/O. LATE CHACKO BABY, PALAMUTTATHU VADAKKE VIRIPPUKALAYIL, KUDASSANADU P.O., POOZHIKKADU MURI, PANDALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 501. BY ADVS. MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SMT.AKHILA B. ## **RESPONDENTS/STATE & COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. 2 H. HABEEB MUHAMMAD, AGED 70 YEARS, S/O. LATE HASSAN RAWTHER, PUTHENVILAYIL HOUSE, TRIPTHY, MANGARAM MURI, PANDALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 501. BY ADVS. SRI.V.SETHUNATH SRI.V.R.MANORANJAN (MUVATTUPUZHA) SRI.M.AYYOOBUKHAN JESLIN DOLLY MATHEWS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.12.2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING: Crl.R.P No.1426/2019 2 ## _**A. BADHARUDEEN, J.**_ _================================ Crl.R.P No.1426 of 2019_ ================================ _Dated this the 22[nd] day of December, 2022_ ## _**O R D E R**_ This revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience) is at the instance of the sole accused in S.T.No.307/2016 on the file of the Chief Judicial Magistrate Court, Pathanamthitta. 2. Challenge in this revision petition is the veracity of the judgment of the Chief Judicial Magistrate Court, Pathanamthitta, in the above case dated 18.05.2018, modified by the Additional Sessions Judge-IV, Pathanamthitta in Crl.Appeal No.38/2018 dated 26.08.2019. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor as well as Advocate Crl.R.P No.1426/2019 3 V.Sethunath appearing for the 2nd respondent. 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. The complainant filed prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) when cheque for Rs.7,50,000/- dated 13.07.2016, alleged to be issued by the accused to the complainant in repayment of the said sum borrowed from the complainant on 27.07.2015, was dishonoured. 6. The trial court secured the presence of the accused for trial. During trial, PW1 and PW2 examined and Exts.P1 to P6 and Exts.X1 and X1(a) were marked on the side of the complainant. 7. The accused was questioned under Section 313(1)(b) of Cr.P.C and thereafter, though he was given opportunity to adduce defence evidence, he did not adduce any evidence. 8. Trial court appraised the evidence in detail and finally Crl.R.P No.1426/2019 4 found that the complainant discharged his initial burden in the matter of executing Ext.P1 cheque and therefore benefit of presumption was given in favour of the complainant. Finally, the trial court imposed the following: “ _The accused is sentenced under Section 138 of the N.I Act to undergo simple imprisonment for 2 months and to pay fine of Rs.15,00,000/-; in case of default in payment of fine, the accused shall undergo simple imprisonment for 30 days more. The fine amount, if realised, shall be given to PW1 as compensation under Section 357(1) of the Cr.P.C. If the accused does not pay the fine amount within 60 days from today PW1 is entitled to get interest @ 9% per annum on the said amount. The period of detention, if any, already undergone by the accused during the enquiry and trial of the case shall be set off against the term of imprisonment imposed on him under Section 428 of the Cr.P.C.”_ 9. When the matter was taken up in appeal before the Sessions Court, the learned Sessions Judge also concurred the conviction by modifying the sentence and also quantifying the fine amount as under: _“Appellant/accused is directed to undergo imprisonment till the rising of the court and to pay fine of Rs.10,50,000/- (Rupees Ten Lakhs Fifty Thousand only) in default of payment of fine, the accused is directed to undergo simple imprisonment for a period of 2 months._ Crl.R.P No.1426/2019 5 _The fine amount, if realised, shall be given to the complainant as compensation under Section 357(1) of Cr.P.C. The appellant/accused shall appear before the court below to receive the sentence on 30.09.2019.”_ 10. In this matter, though the learned counsel for the accused attempted to upset the concurrent verdicts of conviction and the modified sentence imposed by the appellate court by reiterating the contentions raised before the trial court. The contention is to the effect that the accused borrowed Rs.2 lakh from the complainant and the said amount was repaid through his wife. The trial court appraised the contention based on the evidence of PW1 and Ext.X1 suggesting that the accused borrowed Rs.7,50,000/- on 27.07.2015 by encashing a cheque issued by the complainant in favour of the accused. Thus unlike in other cases, the case of the complainant that he had advanced Rs.7,50,000/- to the accused and to discharge the said liability, the accused issued Ext.P1 cheque are well established in this case. In fact, the said finding was confirmed by the appellate court also. Thus it appears that the plea of discharge by admitting receipt of Crl.R.P No.1426/2019 6 Rs.2 lakh alone by the accused from the complainant failed to be proved. To the contrary, the complainant successfully discharged his initial burden in the transaction as well as execution of the cheque and entitled the benefit of presumption in his favour. 11. Although the learned counsel for the revision petitioner/accused argued to unsettle the concurrent verdicts of conviction entered into by the trial court as well as the appellate court and the modified sentence by the appellate court, finally he conceded that the revision petitioner/accused will be satisfied with grant of one month's time to pay the compensation. 12. 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 Phalke**_ ; [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda,**_ are on this Crl.R.P No.1426/2019 7 point. 13. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I 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 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. 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 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. Crl.R.P No.1426/2019 8 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], _**Kalamani Tex (M/s.) & anr. v. P.Balasubramanian**_ . 14. No other contentions raised in this matter. Therefore, there is no reason to disbelieve the transaction as well as the execution of the cheque. As such, the concurrent verdicts of conviction do not require any interference. The sentence also does not require any interference since the appellate court rightly modified the substantive sentence to pay fine of Rs.10,50,000/(Rupees Ten Lakhs Fifty Thousand only) and in default of payment of fine, the accused is directed to undergo simple imprisonment for a period of 2 months. The fine amount, if realised, shall be given to the complainant as compensation under Section 357(1) of Cr.P.C. 15. Accordingly, the Revision Petition stands dismissed. 16. In this matter, the cheque amount is Rs.7,50,000/- and the transaction is of the year 2015. In the interests of justice, I am inclined to grant one month's time from today to pay the Crl.R.P No.1426/2019 9 fine/compensation. Therefore, the revision petitioner/accused is directed to appear before the trial court on or before 21.01.2023 to undergo the sentence and to pay fine. On failure to do so, the trial court is directed to execute the sentence as per law without fail. 17. Since time granted till 21.01.2023, execution of the sentence shall stand deferred till 20.01.2023. Registry shall forward a copy of this order to the court below concerned for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_