Jayakrishnan v. State of Kerala and V. Sudhakaran

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 CRL.REV.PET NO. 927 OF 2022** **AGAINST THE JUDGMENT IN CRA 13/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KOLLAM & JUDGMENT IN S.T.NO.1805/2012 DATED 27.12.2019 OF JFMC-II,** ## **KOLLAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** JAYAKRISHNAN, AGED 47 YEARS, S/O.KRISHNANKUTTY, SANTHI BHAVAN, PALATHARA, THATTAMALA P.O, KOLLAM – 691020. BY ADVS. PRATHEESH.P ANJANA KANNATH T.S.SREEKUTTY ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 V.SUDHAKARAN, PADIPURAYIL VEEDU, EZHUKONE, KOLLAM, PIN – 691505. BY ADVS. C.HARIKUMAR SANDRA SUNNY(K/926/2020) ARUN KUMAR M.A(K/1197/2021) PUBLIC PROSECUTOR SRI.G.SUDHEER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.01.2023, THE COURT ON 16.01.2023 DELIVERED THE FOLLOWING: Crl.R.P.No.927 of 2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P No.927 of 2022_ ================================ _Dated this the 16[th] day of January, 2023_ ## _**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.1805/2012 on the file of the Judicial First Class Magistrate Court-II, Kollam. 2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court-II, Kollam, in the above case dated 27.12.2019, modified by the Additional Sessions Judge, Kollam in Crl.Appeal No.13/2020 dated 30.04.2022. Crl.R.P.No.927 of 2022 3 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Even though notice was ordered to the respondent, there was no appearance. 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. The complainant initiated prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) against the accused, when cheque for Rs.9,95,000/- dated 23.06.2011, alleged to be issued by the accused to the complainant in discharge of liability for the said sum, alleged to be borrowed by the accused from the complainant, by way of cheque dated 23.06.2011 drawn on Indus Bank, Kollam Branch was dishonoured due to insufficiency of fund, when it was presented for collection. 6. The trial court secured the presence of the accused for trial. During trial, PW1 and PW2 examined and Exts.P1 to P9 Crl.R.P.No.927 of 2022 4 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. The trial court given emphasis to the evidence of PW1 and Exts.P1 to P9 to hold that the complainant discharged his initial burden in the matter of executing Ext.P1 cheque. 9. On appreciation of the evidence, the learned Magistrate convicted and sentenced the accused as under: _“In the result, the accused is convicted for offence under Section 138 of N.I Act and he is sentenced u/s 255(2) Cr.P.C to undergo Simple Imprisonment for 6 months and to pay compensation of Rs.9,95,000/- (Rupees Nine Lakh Five Thousand) to complainant u/s 357 (3) Cr.PC and in default of payment of compensation he shall undergo Simple Imprisonment for 3 months.”_ 10. The accused challenged the verdict of the trial court before the Sessions Court, Kollam in Crl.Appeal No.13/2020. The Crl.R.P.No.927 of 2022 5 learned Additional Sessions Judge, Kollam also concurred with the finding while modifying the sentence till rising of court and confirming the other part of sentence imposed by the trial court. While attempting to upset the concurrent verdicts of conviction and the modified sentence imposed by the appellate court, it is argued that the complainant failed to adduce evidence to prove the circumstances by which Ext.P1 cheque was issued and also failed to prove the consideration pertaining to Ext.P1 cheque. It is argued further that the appellate court failed to appreciate the ratio of the decision of the Apex Court in [2020(2) KLT 21 (SC)], _**APS Forex Services Pvt. Ltd. v. Sakthi International Fashion Linkers**_ to hold that the complainant failed to prove his financial capacity to advance the said cheque amount. 2 other decisions reported in [2015 (4) KLT SN 163], Abdul Khadar v. Zubir & anr. and [2014 (3) KHC 533], _**Subramani.K v. Damodara Naidu**_ , were also relied on to contend that the complainant should discharge his initial Crl.R.P.No.927 of 2022 6 burden so as to shift the burden of rebuttal of presumptions on the shoulder of the accused and also to contend that there is no presumption that there is no legally recoverable debt payable by the accused. Further it has been contended that there is no legally enforceable debt. 11. In this case, the trial court as well as the appellate court had given emphasis to the evidence of PW1 supported by evidence of PW2 to hold that the complainant proved transaction led to execution of cheque towards discharge of Rs.9,95,000/- borrowed by the accused from the complainant on 23.06.2011. It could be gathered that the complainant had given evidence in support of his contention and the specific case deposed by the complainant was that on 23.06.2011 the accused approached the complainant and requested Rs.10 lakh for his urgent need and pursuant to the said demand, the complainant had given Rs.9,95,000/- on 23.06.2011. The complainant had given evidence further that out of which Crl.R.P.No.927 of 2022 7 cheque for Rs.9 lakh dated 23.06.2011 drawn on Indus Bank, Kollam Branch given to the accused was encashed on 23.06.2011 itself and Rs.50,000/- withdrawn from the bank account of the complainant also was handed over. Further Rs.45,000/- in hand also was given. PW2, the Manager, Indus Bank, produced Ext.P9 account statement maintained by the complainant from 01.04.2011 to 31.03.2012 and he had given evidence that one Jayakrishnan (the accused is Jayakrishnan) had encashed cheque for Rs.9 lakh from the account of the complainant and the complainant had withdrawn Rs.50,000/- from his account on the same day. Thus the averments of PW1 is well corroborated by the evidence of PW2. In fact, Ext.P9 would go to show that the accused encashed cheque for Rs.9,00,000/- issued by the complainant and Rs.50,000/- was withdrawn by the complainant from his account. Therefore, the source of the complainant to advance the money is well established by the evidence of PW2 and Ext.P9 and this challenge appears to Crl.R.P.No.927 of 2022 8 be ill motivated as against unchallenged evidence of PW2 and Ext.P9. Therefore, the challenge raised as regards the source of the complainant to advance the said sum relying on the above decision the Apex Court in _**APS Forex Services Pvt. Ltd. v. Sakthi International Fashion Linkers**_ 's case ( _supra_ ) and _**Subramani.K v. Damodara Naidu**_ 's case ( _supra_ ) could not be appreciated. 12. It is to be born out from the judgments of the lower courts that during cross examination, the evidence of PW1 in the matter of transaction led to execution of Ext.P1 cheque was not shaken in any manner and the same is corroborated by the evidence of PW2. It is interesting to note that the learned counsel for the accused put up a contention that he had issued a blank signed cheque when he received Rs.95,000/- from the complainant as security and on repayment of the said sum, the security cheque was not returned. In fact, no evidence forthcoming to substantiate this contention. Crl.R.P.No.927 of 2022 9 13. The legal position is settled 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 point. 14. 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 Crl.R.P.No.927 of 2022 10 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. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], _**Kalamani Tex (M/s.) & anr. v. P.Balasubramanian**_ . In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above. 15. Therefore, the conviction entered into by the trial court Crl.R.P.No.927 of 2022 11 does not require any interference. It is noticed that the trial court as well as the appellate court correctly appreciated evidence and recorded conviction. The appellate court rightly modified the sentence to the least minimum possible. In view of the above, there is no reason to interfere with the sentence also. 16. In view of the above finding, the Revision Petition stands dismissed. 17. Considering the fact that the cheque in question is of the year 2011, I am inclined to grant two months' time from today to pay the fine/compensation. Therefore, the revision petitioner/accused is directed to appear before the trial court on or before 16.03.2023 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. 18. Since time granted till 16.03.2023, execution of the sentence shall stand deferred till 15.03.2023. Crl.R.P.No.927 of 2022 12 Registry shall forward a copy of this order to the courts below concerned for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_