JESWIN MARIYA v STATE OF KERALA & CHEMMANNUR FASHION JEWELLERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA,** **1944** **CRL.REV.PET NO. 883 OF 2022 AGAINST THE JUDGMENTS IN S.T.NO.2386/16 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, SULTHAN BATHERY DATED 18.03.2020** **CRIMINAL APPEAL NO.37/2020 OF SESSIONS COURT, KALPETTA, WAYANAD DATED 05.11.2022** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **JESWIN MARIYA, W/O. CHARLES JAMES, MANKUTHEL HOUSE, ACHOORANAM POST, KALPETTA, VYTHIRI TALUK, PIN - 673121 BY ADVS. K.A.SALIL NARAYANAN K.BINCYMOL** ## **RESPONDENTS/STATE & COMPLAINANT :** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 CHEMMANNUR FASHION JEWELLERS, DOOR NO. SBP VI/96 A, KOZHIKODE - MYSORE ROAD, SULTHAN BATHERY, REPRESENTED BY POWER OF -** Crl.R.P No.883 of 2022 2 **ATTORNEY HOLDER JIBIN MATHEW, S/O. MATHEW, KARIKKATTIL HOUSE, THIRUVAMBADY, KOZHIKODE, PIN – 673582** **BY SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.12.2022, THE COURT ON 04.01.2023 DELIVERED THE FOLLOWING:** Crl.R.P No.883 of 2022 3 ## _**A. BADHARUDEEN, J.**_ _================================ Crl.R.P No.883 of 2022_ ================================ _Dated this the 4[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.2386 of 2016 on the file of the Judicial First Class Magistrate Court-I, Sulthan Bathery. 2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court-I, Sulthan Bathery, in the above case dated 18.03.2020, confirmed by the Sessions Court, Kalpetta in Crl.Appeal No.37 of 2020 dated 05.11.2022. 3. Heard the learned counsel for the revision petitioner Crl.R.P No.883 of 2022 4 and the learned Public Prosecutor. 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.6,68,760/- dated 07.09.2016, alleged to be issued by the accused to the complainant in repayment of the said sum towards price of the gold ornaments, alleged to be purchased by the accused from the complainant on 09.06.2016, was dishonoured. 6. The trial court secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P6 were marked on the side of the complainant. 7. Thereafter, the accused was given opportunity to adduce defence evidence after questioning her under Section 313(1)(b) of Cr.P.C. Availing this opportunity, the accused herself Crl.R.P No.883 of 2022 5 got examined as DW1 and marked Exts.D1 to D4. 8. Trial court appraised the evidence in detail and finally found that the complainant discharged his initial burden in the matter of executing Ext.P2 cheque and therefore, benefit of presumption was given in favour of the complainant. Finally, the trial court imposed the following: “ _The accused is convicted under Section 255(2) of Cr.P.C. and she is sentenced to undergo simple imprisonment till rising of court and to pay compensation of Rs.6,68,760/- (Rupees Six lakh Sixty Eight Thousand Seven Hundred and Sixty only) to the complainant under Section 357(3) of Cr.P.C. for the offence punishable under Section 138 of the N.I.Act. In default of payment of compensation, the accused shall undergo simple imprisonment for a period of six months.”_ 9. When the matter was taken up in appeal before the Sessions Court, the learned Sessions Judge also confirmed the conviction and sentence. 10. In this matter, though the learned counsel for the accused attempted to upset the concurrent verdicts of conviction Crl.R.P No.883 of 2022 6 and the sentence imposed by the courts below by reiterating the contentions raised before the trial court, his attempt not found to be convincing. The learned counsel for the accused argued that the accused put up a specific defence case before the trial court denying purchase of gold ornaments from the complainant during 2016, while admitting purchase of gold ornaments during 2013. in connection with the marriage of her daughter on 23.11.2013. 11. Insofar as this contention is concerned, the trial court as well as the appellate court appraised this contention and found that the accused miserably failed to prove the defence case so as to rebut the presumptions under Section 118 and 139 of the Negotiable Instruments Act, available in favour of the complainant. 12. It is true that the trial court considered the contention based on Exts.D1 to D4 as well as the evidence of DW1. DW1 is none other than the accused. Although Ext.D1 was given Crl.R.P No.883 of 2022 7 emphasis to show payment of 3 installments towards the sale price of the gold ornaments, admittedly purchased during 2013, the accused failed to get necessary entries regarding payment entered in Ext.D1. Further it was found by the trial court that Ext.D1 could not be the sole basis to hold that the accused discharged the admitted liability. The appellate court also upheld the said finding. Exts.D2 and D3 are documents relating to the marriage of the daughter of the defacto complainant. At the same time, Ext.D4 bill was let in evidence to prove purchase of gold ornaments on 19.11.2013. However, the courts below negatived the contentions of the accused on the finding that the case of the complainant that the accused purchased gold ornaments on 09.06.2016 is established by Exts.P1 to P6 documents. Therefore, this challenge cannot yield. 13. At the time of hearing of this case, the learned counsel for the accused pointed out that the bill produced to prove Crl.R.P No.883 of 2022 8 purchase of gold ornaments on 09.06.2016 is not a genuine one, since the same did not contain anything showing the details towards payment of tax with necessary endorsement `CST with TIN'. Therefore, the transaction alleging purchase of gold ornaments on 09.06.2016 miserably failed to be proved and, therefore, the courts below should have upheld the case of the accused. 14. In this connection, it is necessary in the interests of justice to hold that this contention was not seen raised before the trial court or before the appellate court. However, the copy of the documents produced before this Court would go to show that there was purchase of gold ornaments by the accused on 09.06.2016, as contended and proved by the evidence of PW1, supported by Exts.P1 to P6. 15. The trial court appraised the contention based on the evidence of PW1 suggesting that the accused purchased gold Crl.R.P No.883 of 2022 9 ornaments for the value of Rs.6,68,760/- on 09.06.2016 from the complainant and in repayment of the said sum Ext.P2 cheque was issued by the complainant in favour of the accused. It is true that the accused denied purchase of gold ornaments as on 09.06.2016, while admitting the same during 2013. But the attempt of the accused was not accepted by the trial court for want of sufficent evidence. But the courts below relying on evidence given by PW1 by establishing purchase of gold ornaments by the accused from the complainant on 09.06.2016 and consequential issue of Ext.P2 cheque, held that the complainant successfully discharged the initial burden in the matter of transaction as well as execution of the cheque and given the benefit of presumptions in favour of the complainant. 16. 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 Crl.R.P No.883 of 2022 10 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. 17. 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 Crl.R.P No.883 of 2022 11 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**_ . 18. 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 and sentence do not require any interference. 19. Accordingly, the Revision Petition stands dismissed. 20. In this matter, the cheque amount is Rs.6,68,760/- and the transaction is of the year 2016. In the interests of justice, I am inclined to grant one month's time from today to pay the Crl.R.P No.883 of 2022 12 fine/compensation. Therefore, the revision petitioner/accused is directed to appear before the trial court on or before 03.02.2023 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. 21. Since time granted till 03.02.2023, execution of the sentence shall stand deferred till 02.02.2023. Registry shall forward a copy of this order to the court below concerned for information and compliance. _Sd/-_ _**A. BADHARUDEEN, JUDGE**_ _rkj_ Crl.R.P No.883 of 2022 13 ## **APPENDIX OF CRL.REV.PET 883/2022** **PETITIONER ANNEXURES ANNEXURE1 CERTIFIED COPY OF JUDGEMENT IN CRIMINAL APPEAL NO 37/2020 DATED 5/11/2022 ANNEXURE2 CERTIFIED COPY OF JUDGEMENT IN ST NO 2386/2016 DATED 18/3/2020**