Jayesh v. State of Kerala

# **`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. 440 OF 2020 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 35/2019 OF DISTRICT COURT & ``` ``` SESSIONS COURT, PALAKKAD ``` ``` ST 427/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM REVISION PETITIONER/APPELLANT/ACCUSED: ``` ``` JAYESH AGED 35 YEARS S/O.SANKARANARAYANAN, KARINKUZHIYIL HOUSE, MANISSERY.P.O., VELLIYAD ROAD, OTTAPALAM, PALAKKAD DISTRICT, PIN-679521. BY ADVS. MATHEW KURIAKOSE SHRI.MONI GEORGE ``` ## **`RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2M.K.MOHANDAS, AGED 53 YEARS, S/O.GOVINDANKUTTY, DEVI KRIPA, KULAPPULLY.P.O., SHORNUR-679122. BY ADV SRI.K.B.ARUNKUMAR SMT.C.SEENA, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ``` ``` ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 2 ``` ## **O R D E R** Dated this the 16[th] day of January, 2023 This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the accused in S.T.No.427/2012 on the files of the Judicial First Class Magistrate Court-I, Ottapalam, arraying the State of Kerala as the 1[st] respondent and original complainant as the 2[nd] respondent. 2. The revision petitioner impugns judgment in S.T.No.427/2012 dated 22.01.2019 on the files of the Judicial First Class Magistrate Court-I, Ottapalam and the judgment in Criminal Appeal No.35/2019 dated 30.09.2019 on the file of the Sessions Court, Palakkad arising therefrom. 3. Heard the learned counsel for the revision petitioner, learned counsel for the 2[nd] respondent as well as the learned Public Prosecutor, on admission. ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 3 ``` 4. I shall refer the parties in this revision as 'complainant' and 'accused' for easy reference. 5. The brief facts of the case put up by the complainant before the trial court are as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act’) when cheque for Rs.5,00,000/-, alleged to be issued by the accused to the complainant on 04.01.2012 got dishonoured. The complainant put up a specific case that the accused had issued the said cheque in discharge of Rs.5,00,000/- alleged to be borrowed by the accused from the complainant on 15.06.2010, assuring a job to the son of the complainant in the Marketing Office of Aqua Fina and Hill Valley Mineral Water Company. 6. The trial court secured the presence of the accused for trial. During trial, PW1 was examined and Exts.P1 to P6 ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 4 ``` were marked on the side of the complainant. 7. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, DW1 and DW2 were examined and Exts.D1 series and D2 were marked on the side of the accused. 8. The trial court appraised the evidence and finally found that the accused committed offence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for one month and to pay fine of Rs.6,50,000/- (Rupees six lakh fifty thousand only). In default of payment of fine, the accused shall undergo simple imprisonment for a further term of six months. The fine was ordered to be given as compensation to the complainant under Section 357(3) of Cr.P.C. 9. The judgment in S.T.No.427/2012 dated 22.01.2019 was challenged before the Sessions Court, ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 5 ``` ## Palakkad. The learned Sessions Judge modified the sentence while confirming the conviction as under: “In the result, the appeal is allowed in part, confirming the conviction, but modifying the sentence reducing the fine amount to Rs.6,00,000/- payable in its entirety as compensation to the complainant and also reducing the custodial term of default sentence to three months.” 10. While impugning the concurrent verdicts of the trial court and modified sentence imposed by the appellate court, the learned counsel for the revision petitioner/accused argued that there is improbability in the case advanced by the complainant. According to the learned counsel, PW1 given evidence that cheque was issued on 01.12.2010 and the date of the cheque was on 04.01.2012. He also pointed out that during 2011, the son of the complainant, Mr.Arundas, lodged complaint before the police on the allegation that he was brutally manhandled by the accused herein and for which Ext.D2 case was registered. He also pointed out that as per ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 6 ``` Ext.D1 statement given by the son of the complainant in Ext.D2 case, who was examined as DW1, he had stated that the amount was received by the accused from him and in the complaint as well as in the deposition, PW1, the complainant, given evidence that Rs.5,00,000/- was received by the accused from the complainant. Therefore, contra versions in the above line, read along with the issuance of a cheque dated 04.01.2012 on 01.12.2010, (bearing a cheque dated after two years) would make the case of the complainant improbable and therefore, the courts below went wrong in giving emphasis to the evidence of PW1 to hold that the complainant discharged his initial burden in the matter of transaction as well as execution of the cheque. 11. Defending this contention, the learned counsel for the 2nd respondent/complainant would submit that the accused borrowed Rs.5,00,000/- on 15.06.2010 on the assurance of giving an employment to the son of the ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 7 ``` complainant, and when he failed to comply with the said undertaking, the complainant demanded back the money. It was at this juncture, Ext.P1 cheque dated 04.01.2012 was issued. Since the complainant gave evidence supporting the transaction led to execution of the cheque, there is no reason to disbelieve him and therefore, the courts below rightly given emphasis to the said evidence to hold that the complainant discharged his initial burden. 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 point. ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 8 ``` 13. In order to find out the illegality of the concurrent verdicts, I have perused the evidence of PW1 in order to appraise the improbability pointed out by the learned counsel for the accused. PW1 given evidence as to entrustment of Rs.5,00,000/- on 15.06.2012 and issuance of cheque on 01.12.2010 bearing date 04.01.2012. During crossexamination, nothing was asked to PW1 as to issuance of cheque on 01.12.2010 with date 04.01.2012, after two years. But during cross-examination, initially, PW1 given evidence that the accused reached his house, written and signed the cheque. But at a later point of cross-examination, his case was that the cheque was written and brought when a suggestion was made to the effect that the hand-writing in Ext.P1 cheque did not belong to the accused. In fact, the same is not a serious anomaly in disbelieving the version of PW1. Therefore, this anomaly is of least significance. ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 9 ``` 14. That apart, the learned counsel for the accused/revision petitioner pointed out the evidence of DW1, who is the son of PW1. It is submitted that DW1 given statement before the Police that the accused borrowed amount from DW1. It is surprising to note that none of the previous statements brought to the notice of the DW1 or no attempt made to make the same as contradictions so as to act upon the same. Thus, nothing before this Court to read the same as a contradiction. Therefore, this contention found to be meritless. 15. The defence case put up during cross-examination was that, Mr.Arundas (DW1) and Abdul Latheef procured cheque from the accused and foisted this case. The suggestion was denied by PW1. In fact, nothing established in evidence to prove the defence case apart from a statement given by the accused during his examination under Section 313 of Cr.P.C. reiterating the above said contention. ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 10 ``` 16. 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.REV.PET NO. 440 OF 2020 ``` ``` 11 ``` 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], . **Kalamani Tex (M/s.) & anr. v. P.Balasubramanian** 17. It is relevant to refer a latest decision of the Apex Court reported in [2022(5) KHC 560(SC)], **Oriental Bank of Commerce v. Prabodh Kumar Tewari** , whereas it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 18. In this matter, the trial court as well as the appellate court correctly appreciated the evidence and came to the conclusion that the evidence available established commission of offence punishable under Section 138 of NI Act by the ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 12 ``` accused and, accordingly, the accused was convicted. In fact, there is no reason to revisit the concurrent verdicts of conviction as well as the modified sentence. 19. Faced with the situation, the learned counsel for the accused sought for two months’ time to pay the amount. Since the fine amount would come to Rs.6 lakh and in consideration of the fact that the transaction was in the year 2012, I am inclined to grant two months’ time from today to pay the compensation. 20. In the result, this revision petition fails and it is, accordingly, dismissed. 21. However, the revision petitioner/the accused is given two months’ time from today to pay the fine/compensation and to undergo the sentence. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 17.03.2023 to pay the fine/compensation or to undergo the default sentence. On failure to surrender as ``` CRL.REV.PET NO. 440 OF 2020 ``` ``` 13 ``` directed, the trial court is directed to execute the sentence as per law without fail. 22. Since time granted till 17.03.2023, execution of the sentence shall stand deferred till 16.03.2023. Registry shall forward a copy of this order to the court below concerned for information and compliance. **Sd/-** **A. BADHARUDEEN JUDGE** nkr