Jayesh M.E. v. Babu K.P. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **Crl.Rev.Pet.No.214 OF 2020** **AGAINST THE JUDGMENT IN CRA 245/2019 DATED 11-10-2019 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, KOZHIKODE** **AGAINST THE JUDGMENT IN CC 4/2018 DATED 16-05-2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - X, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **JAYESH M.E., AGED 42 YEARS S/O.VASUDEVAN NAMBOODIRI, MAYICHOTTU ILLAM, PALAKKADA, PUTHIYANGADI, POST EDAKKAD, WEST HILL,KOZHIKODE - 673 005.** **BY ADVS. SRI.SANTHARAM.P SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 BABU K.P., AGED 46 YEARS, S/O.CHOYICHUTTY, GOPAKRIPA H, POST PANTHEERANKAVU, KOZHIKODE DISTRICT, PIN - 673 019.** **2 THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682 031.** ## **SRI.AJITH MURALI PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON 02.03.2020 PASSED THE FOLLOWING:** Crl.R.P.No.214/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.214 of 2020 ------------------------------------------Dated this the 2[nd] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.4/2018 on the file of the Court of the Judicial First Class Magistrate-X, Kozhikode. 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 undergo simple imprisonment for a period of three months and also to pay a fine of Rs.2,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. Crl.R.P.No.214/2020 3 3. The petitioner filed Crl.A.No.245/2019 before the Court of Session, Kozhikode challenging the order of conviction and sentence made against him by the trial court. The appellate court confirmed the conviction against the petitioner under Section 138 of the Act but modified the substantive sentence of imprisonment and reduced it to imprisonment till the rising of the court and maintained the sentence of fine imposed on the petitioner by the trial court. 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: On 18.11.2015, the accused borrowed an amount of Rs.2,50,000/from the complainant. He had promised that he would repay the amount within one month. When the complainant demanded repayment of the amount, the accused issued him a cheque dated 05.01.2016 for Rs.2,50,000/-. The complainant presented Crl.R.P.No.214/2020 4 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 notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He 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 P4 documents were marked on his side. The accused got himself examined as DW1. 8. When examined as PW1, the complainant gave evidence regarding the borrowing of the amount from him by the accused and also issuing of Ext.P1 cheque by the accused to him in discharge of the liability. 9. PW1 gave evidence that he saw the accused putting his signature in Ext.P1 cheque. However, during the crossexamination, he gave evidence that he did not see the accused putting his signature in the cheque or writing anything in it. 10. On the basis of the aforesaid evidence given by PW1, it was contended by the accused in the courts below that the Crl.R.P.No.214/2020 5 complainant failed to prove execution of Ext.P1 cheque by him. This plea was concurrently negatived by the courts below. 11. The accused has no case that Ext.P1 cheque does not bear his signature. In such circumstances, the question whether the accused himself had filled up the cheque or some other person had made the entries in the cheque is not relevant and material. 12. 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 Section 138 of the Act 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 Crl.R.P.No.214/2020 6 by adducing evidence. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt (See **Bir Singh v. Mukesh Kumar : AIR 2019 SC 2446** ). 13. When a cheque issued to the accused from his bank, which bears his signature, is in the hands of the complainant, it is for the accused to explain how such a cheque, which bears his signature, happens to be in the possession of the complainant. 14. The plea of the accused is that, during the year 2014, he had borrowed an amount of Rs.75,000/- from the complainant and at that time, he had given signed blank cheque leaves and stamp papers belonging to him and his mother-in-law as security to the complainant. It is the further plea of the accused that he repaid the entire amount due to the complainant but the documents obtained as security from him were not returned to him and that the complainant has misused one of the aforesaid cheques and filed the case. Crl.R.P.No.214/2020 7 15. When examined as DW1, the accused gave evidence in tune with the aforesaid plea. The question is whether the evidence of DW1 is reliable and trustworthy. 16. It is true that, the complainant did not dispute the fact that, there was a transaction between him and the accused in the year 2014. But the complainant did not admit that the accused had given him any cheque as security at the time of the aforesaid transaction. The evidence of DW1 that he had given a signed blank cheque to the complainant at the time of the earlier transaction and that the complainant did not return the cheque inspite of closing the transaction, cannot be believed. If the accused had given any signed blank cheque as security at the time of the earlier transaction, there is no explanation as to why he did not take steps to get back the aforesaid cheque from the complainant after closing the transaction. 17. Moreover, there is also no satisfactory and convincing explanation given by the accused for not sending any reply to the statutory notice sent to him by the complainant. Of course, the accused gave evidence that he had asked the complainant about Crl.R.P.No.214/2020 8 the notice and then the complainant told him that no action would be taken against him and it was the reason for not sending any reply. This explanation is not at all convincing and satisfactory. When the accused had received a lawyer notice from the complainant, claiming an amount of Rs.2,50,000/- from him, threatening legal action against him on default being made in payment of such amount, it cannot be believed that the accused did not respond because the complainant promised him that no action would be taken against him. If the accused had not borrowed an amount of Rs.2,50,000/- from the complainant and if he had not issued Ext.P1 cheque in discharge of that liability, he would have definitely sent a reply to the statutory notice. Silence and inaction on the part of the accused on receiving the statutory notice from the complainant leads to an inference that the case of the complainant is true. 18. In the aforesaid circumstances, I find that the courts below have properly analysed the evidence and come to the correct conclusion. There is no illegality, impropriety or perversity in the appreciation of evidence or the findings entered Crl.R.P.No.214/2020 9 against the accused by the courts below. 19. The courts below have appreciated the evidence and made concurrent findings. 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. Crl.R.P.No.214/2020 10 20. The appellate court has shown maximum leniency in the matter of sentence imposed on the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused except limiting the sentence of fine to Rs.2,50,000/- without any interest. 21. Consequently, the revision petition is dismissed. Conviction of the petitioner by the trial court for the offence under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the appellate court is confirmed limiting the amount of fine to Rs.2,50,000/- (Rupees two lakhs fifty thousand only) without any interest. The petitioner/accused is granted a period of four months from today to remit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr