Joby Paul @ Joby M.M. v. M.N. Venugopal and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA,** ## **1944** **CRL.REV.PET NO.850 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRA 239/2020 OF ADDITIONAL DISTRICT & SESSIONS COURT, MUVATTUPUZHA CC 200/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,** ## **PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** JOBY PAUL @ JOBY M.M., AGED 40 YEARS, SON OF MATHAI, MOLATHU HOUSE,(CHIRAPPADY RIGHT), KEEZHILLAM P.O., RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN – 683541. BY ADV. MANJU ANTONEY ## **RESPONDENTS/COMPLAINANT/STATE:** 1 M.N.VENUGOPAL, AGED ABOUT 56 YEARS, SON OF NARAYANA PILLAI, CHITHRAM, MEPRATHUPADY P.O, VENGOLA, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN – 683542. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 68031. BY ADV. SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.R.P.No.850 of 2022** 2 ## **O R D E R** ## **Dated this the 12[th] day of December, 2022** This Revision Petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the sole accused in C.C.No.200/2017 on the file of the Judicial First Class Magistrate CourtII, Perumbavoor arraying the original complainant as the 1[st] respondent and State of Kerala as the 2[nd] respondent. 2. The revision petitioner impugns judgment in C.C.No.200/2017 dated 14.08.2020 of the Judicial First Class Magistrate Court-II, Perumbavoor and the judgment in Criminal Appeal No.239/2020 dated 30.09.2022 on the file of the Additional Sessions Court, Muvattupuzha arising therefrom. 3. Heard the learned counsel for the revision petitioner as well as the learned ## **Crl.R.P.No.850 of 2022** **==> picture [7 x 9] intentionally omitted <==** Public Prosecutor, on admission. 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 is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short), when cheque for Rs.50,000/- dated 10.02.2012 alleged to be issued by the accused to discharge the said liability towards the complainant, was dishonoured for want of funds, when the same was presented for collection. Although the complainant sent legal notice and demanded the amount covered by the cheque, the accused did not pay the amount. 6. The trial court proceeded with trial. During trial, PW1 was examined and Exts.P1 to 4 ## **Crl.R.P.No.850 of 2022** P5 were marked. 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 was examined, Exts.D1 to D2 marked on the side of the accused. 8. The trial court appraised the evidence and finally found the accused was guilty for the offence punishable under Section 138 of the NI Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a period of one month and to pay fine of Rs.50,000/-. Fine was ordered to be paid as compensation to the complainant under Section 357(3) of Cr.P.C. It was ordered further that, in case of default in payment of fine, the accused would undergo simple imprisonment for a further period of 15 days. 9. The judgment in C.C.No.200/2017 dated 14.08.2020 was challenged before the Additional ## **Crl.R.P.No.850 of 2022** 5 Sessions Court, Muvattupuzaha. The learned Sessions Judge also confirmed the said conviction while modifying the substantive sentence, for a day till rising of the court, as per judgment dated 30.09.2022. 10. While impeaching the veracity of the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the accused reiterated the contentions raised before the trial court as well as the appellate court. It is argued that the complainant failed to narrate the details of the transaction between the complainant and the accused in the complaint legibly. It is argued further that the accused availed a loan of Rs.35,000/- from the National Finance Company, functioning near to the Court Complex in Perumbavoor, for purchase of a bike. Initially, the Company received Rs.20,000/- from the accused towards down payment. Thereafter, the officials of the Company demanded three signed ## **Crl.R.P.No.850 of 2022** 6 blank cheques as guarantee at the time of availing loan and one among the said cheques was misused for filing this case. It is argued further that the accused rebutted the presumptions by examining DW1 and Exts.D1 and D2. Therefore, the courts below went wrong in convicting and sentencing the accused. Another challenge was issuance of demand notice in an incorrect address of the accused. 11. As far as the contention with regard to misuse of a cheque as entrusted as guarantee at the time when the accused availed loan from the Company to purchase a bike. It could be gathered that the courts below on evaluating the evidence of DW1, the Managing Director of National Finance Company, and relying on Ext.D1 pass book and Ext.D2 Hire purchase ledger relating to the loan, negatived the said contention. Though DW1 admitted that the complainant was one among 13 partners of the Company, he had denied the fact that the ## **Crl.R.P.No.850 of 2022** 7 present complaint was filed in the said capacity. He also denied receipt of any blank cheque from the accused by the Company for the purpose of availing loan. Thus, it was found by the trial court and appellate court that the evidence of DW1 and Exts.D1 and D2 would not help the accused to prove his case or to rebut the presumptions. 12. This is a context in which the trial court as well as the appellate court given emphasis to the evidence of PW1 to hold that the complainant successfully discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque so as to avail benefit of presumptions under Section 118 and 139 of the N.I Act, in his favour. 13. Thus, it appears that the contention raised by the accused that he had rebutted the presumptions could not be found from the materials available. 14. Regarding the second contention of ## **Crl.R.P.No.850 of 2022** 8 issuance of notice, the learned trial court rightly relied on the decision of the Apex Court in [2007 (2) KHC 932 : 2007 (2) KLD 148 : ILR 2007 (3) Ker. 203 : 2007 (6) SCC 555 : JT 2007 (7) SC 498 : 2007 (3) KLT 77 : 2007 (3) KLJ 81 : 2007 CriLJ 3214 : 2007 (3) SCC (Cri) 236 : 2007 (2) Guj LH 512 : 2008 (1) MPLJ 441 : 2008 (1) Mah LJ 44], _**C.C.Alavi Haji v. Palapetty Muhammed & anr.**_ The Apex Court considered the relevant provisions of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 and held as under: _“Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to_ 9 ## **Crl.R.P.No.850 of 2022** _have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement `refused' or `not available in the house' or `house locked' or `shop closed' or `addressee not in station', due service has to be presumed.”_ 15. Relying on the decision, the trial court held that Ext.P5 notice was returned with endorsement 'addressee left'. Further the accused had no case that during the time of issuance of notice, was not residing in the said address, mentioned in the envelope. Therefore, the trial court found that issuance of cheque as mandated under Section 138(b) of N.I.Act as held in _**C.C.Alavi Haji's**_ case (supra) has been complied with. The said finding also is perfectly justified. 16. In fact, nothing substantiated to revisit the concurrent verdicts of the courts below by executing the power of revision. **==> picture [381 x 12] intentionally omitted <==** **Crl.R.P.No.850 of 2022** **==> picture [13 x 9] intentionally omitted <==** 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. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], ## _**State of Kerala v. Puttumana Illath Jathavedan**_ _**Namboodiri**_ , the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5): _“5. …... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless_ **Crl.R.P.No.850 of 2022** 11 _any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”_ 18. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], _**Sanjaysinh**_ _**Ramrao Chavan v. Dattatray Gulabrao Phalke**_ , the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135): _“14. …... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the_ **Crl.R.P.No.850 of 2022** 12 _Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. 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 glaring 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 courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 19. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda**_ . Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to **Crl.R.P.No.850 of 2022** 13 re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 20. It is submitted by the learned counsel for the accused that in order to give benefit of presumption under Section 139, the complainant should establish a case by proving the transaction and execution of the cheque. The legal position is not in dispute. 21. Regarding law on presumptions, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v.**_ ## **Crl.R.P.No.850 of 2022** 14 _**Mohan**_ . In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution under Section 138 of the N.I Act and held as under: _“The presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [2008 (1) KLT 425 (SC)] may not be correct. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specified a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the_ **Crl.R.P.No.850 of 2022** 15 _private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.”_ 22. In the decision reported in [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**_ , the Apex Court while dealing with a case where the accused has a contention that ## **Crl.R.P.No.850 of 2022** 16 the cheque issued was a blank cheque, it was held as under: _“A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that 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 S.138 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 by adducing evidence.”_ 23. In a latest 3 Bench decision of the Apex Court reported in [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**_ **Crl.R.P.No.850 of 2022** 17 _**Tex (M/s.) & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I Act it was held as under: _“Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these `reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Once the 2[nd] Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay._ _…................_ _18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be_ **Crl.R.P.No.850 of 2022** 18 _obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that: “Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”_ 24. Thus the law is clear on the point that when the complainant discharges the initial burden to prove the transaction led to execution of the cheque, the presumption 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. 25. In this matter, the concurrent finding of the courts below in the matter of conviction ## **Crl.R.P.No.850 of 2022** 19 as well as sentence is within the sweep of power of the courts and there is no illegality to interfere the same by exercising the power of revision. Therefore, the revision petition is dismissed. **==> picture [381 x 12] intentionally omitted <==** Rs.50,000/- and the transaction is of the year 2012, I am inclined to grant two week's time from today to undergo the sentence and to pay the compensation. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 27.12.2022 to undergo the sentence and to pay fine. In default to do so, the trial court is directed to execute the sentence as per law without fail. Till 27.12.2022, the execution of the sentence shall stand deferred. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww