John P.S v. Francis K.I. and State of Kerala (Crl.R.P. Nos. 631 and 653 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA,** **1944** **CRL.REV.PET NO. 631 OF 2022** **AGAINST THE JUDGMENT DATED 21.07.2022 CRL.APPEAL NO.79/2021 OF SECOND ADDITIONAL SESSIONS COURT,** ## **ALAPPUZHA** **ST 55/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III,** ## **CHERTHALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **JOHN P.S AGED 58 YEARS S/O CHARLI, RTD. GASI, AR CAMP, BAZAR PO, ALAPPUZHA, RESIDING AT PULIMUGHATHU VEEDU, THUMPOLI P.O, POONKAVU, ALAPPUZHA, PIN - 688008 BY ADVS. M.P.MADHAVANKUTTY ANOOP SATHYAN MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA REMYA M. MENON** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **1 FRANCIS K.I., AGED 60 YEARS S/O IGNASIUS KURISHINKAL HOUSE, CMC 3/23 B, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688524** Crl.R.P.Nos.631 and 653 of 2022 -:2:- **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2022, ALONG WITH CRL.REV.PET.653/2022, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:** Crl.R.P.Nos.631 and 653 of 2022 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944** **CRL.REV.PET NO. 653 OF 2022 AGAINST THE JUDGMENT IN CRL.R.P.NO.11/2021 OF SECOND ADDITIONAL SESSIONS COURT, ALAPPUZHA DATED 21.07.2022 ST 55/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, CHERTHALA DATED 22.04.2021** ## **REVISION PETITIONER/1ST RESPONDENT/ACCUSED :** **JOHN P.S AGED 58 YEARS S/O CHARLI, GASI, HC 4493, DISTRICT A.R. CAMP, BAZAR P.O, POONKAVU, ALAPPUZHA, PIN - 688012** **BY ADVS. M.P.MADHAVANKUTTY ANOOP SATHYAN MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA REMYA M. MENON** ## **RESPONDENTS/REVISION PETITIONER AND 2ND** ## **RESPONDENT/COMPLAINANT :** **1 FRANCIS K.I., AGED 60 YEARS, S/O IGNASIUS, KURISHINKAL HOUSE, CMC 3/23 B, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688524** Crl.R.P.Nos.631 and 653 of 2022 -:4:- **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2022, ALONG WITH CRL.REV.PET.631/2022, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:** Crl.R.P.Nos.631 and 653 of 2022 -:5:- **A.BADHARUDEEN, J. --------------------------------------------------------** **Crl.R.P.Nos.631 and 653 of 2022 -------------------------------------------------------Dated this the 27[th] day of October, 2022** ## **COMMON ORDER** These are the Revision Petitions filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience). The revision petitioner in both matters is the sole accused in S.T.No.55 of 2019 before the Judicial First Class Magistrate Court-III, Cherthala. The respondents herein are the original complainant in the above case as well as the State of Kerala. 2. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor. 3. I shall refer the parties in this Revision Crl.R.P.Nos.631 and 653 of 2022 -:6:- Petition as ‘complainant’ and ‘accused’ for convenience. 4. The accused/revision petitioner assails concurrent verdicts of conviction entered into by the Magistrate Court as per judgment dated 22.04.2021 in S.T.No.55 of 2019 and the judgment in Crl.Appeal No.79 of 2021. At the same time, the accused/the revision petitioner assails the order in Crl.R.P.No.11 of 2021 on the file of the Additional Sessions Court-II, Alappuzha whereby, the learned Sessions Judge enhanced the sentence. 5. In this matter, the complainant initiated proceedings under Section 142 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I.Act) alleging commission of offence punishable under Section 138 of the N.I.Act, when the cheque issued by the accused in favour of the complainant to return Rs.2,00,000/- alleged to be received by the accused from the complainant during October 2015, while they Crl.R.P.Nos.631 and 653 of 2022 -:7:- were working together in the police department, was returned unpaid, for want of funds. 6. The case put by the complainant before the trial court is that when the cheque was returned unpaid, he had caused legal notice demanding the cheque amount but, the accused not repaid the amount. 7. The trial court proceeded with trial, on appearance of the accused before the trial court. During trial, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. 8. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 9. The trial court appreciated the evidence available and found that the complainant was successful in proving the transaction led to execution of Ext.P1 cheque and therefore, he was convicted for the offence Crl.R.P.Nos.631 and 653 of 2022 -:8:- punishable under Section 138 of the N.I.Act and sentenced to pay fine of Rs.2,25,000/- and the fine was ordered to be paid to the complainant as compensation under Section 357(1) of Cr.P.C. 10. The accused preferred Crl.Appeal No.79 of 2021 before the Sessions Court, Alappuzha challenging the conviction and sentence. At the same time, the complainant preferred Crl.R.P.No.11 of 2021 seeking enhancement of sentence. The appellate court considered the criminal appeal as well as the criminal revision petition jointly and as per judgment dated 21.07.2022, the appellate court confirmed the conviction imposed by the trial court, while modifying and enhancing the amount of fine, by allowing the revision at the instance of the complainant. The appellate court sentenced the accused to pay fine of Rs.2,70,500/-, in default of payment of fine, to undergo simple imprisonment for five months for the offence punishable Crl.R.P.Nos.631 and 653 of 2022 -:9:- under Section 138 of the N.I.Act and the fine, if realised, was ordered to be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. In default of payment of fine, five months imprisonment also was imposed. 11. The learned counsel for the accused argued that the courts below not properly appreciated the facts, law and evidence in this case in its right perspective. It is contended that the complainant failed to prove his initial burden in the matter of transaction led to execution of Ext.P1 cheque. 12. It is argued that the first appellate court committed a fundamental error by enhancing the fine amount, which was ordered by the Magistrate Court. 13. It is argued further that the trial court committed a fundamental error by direction of the petitioner to pay fine in the tune of Rs.2,25,000/-, since the Magistrate cannot impose a fine exceeding Crl.R.P.Nos.631 and 653 of 2022 -:10:- Rs.10,000/- under Section 29(2) of Cr.P.C. 14. Insofar as the contentions regarding enhancement of fine by the appellate court and payment of fine ordered by the trial court, the same can be considered by this court by exercising power of revision. But, all other contentions are based on appreciation and re-appreciation of evidence, which cannot be considered by this Court by exercising the revisional power. 15. 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. 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): Crl.R.P.Nos.631 and 653 of 2022 -:11:- _“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 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. ...”_ 16. 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 Crl.R.P.Nos.631 and 653 of 2022 -:12:- 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 non-consideration of any relevant material or there is palpable misreading of records, the 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.”_ 17. 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 Crl.R.P.Nos.631 and 653 of 2022 -:13:- 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 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 nonconsideration 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. 18. In this case, the judgment of the courts below would go to show that the complainant had given Crl.R.P.Nos.631 and 653 of 2022 -:14:- evidence as PW1 asserting that the accused borrowed Rs.2,00,000/- from him, during October 2015 and when the said amount was demanded, Ext.P1 cheque dated 30.05.2017 was issued. He also supported the dishonour of the cheque on presentation for encashment, issuance of notice, its acceptance and nonpayment of the amount by the accused. 19. During cross-examination, a suggestion was made to the effect that the complainant, who was familiar with the accused, by exploiting the relationship, put the signature of the accused in Ext.P1 cheque. But for want of evidence, both courts below negatived the contention and believed the evidence of PW1 supported by Exts.P1 to P6 to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque. 20. Indubitably in a prosecution alleging commission of offence punishable under Section 138 of Crl.R.P.Nos.631 and 653 of 2022 -:15:- the NI Act, once the complainant discharges his initial burden, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act are available to the complainant. Law regarding presumptions is also settled as well. 21. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Sri 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_ Crl.R.P.Nos.631 and 653 of 2022 -:16:- _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 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 : Crl.R.P.Nos.631 and 653 of 2022 -:17:- 2019 CriLJ 3227], _**Bir Singh v. Mukesh Kumar**_ , the Apex Court while dealing with a case where the accused has a contention that 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 Crl.R.P.Nos.631 and 653 of 2022 -:18:- ## OnLine 1132], _**M/s Kalamani Tex & 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 ComplainantRespondent 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 obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4_ Crl.R.P.Nos.631 and 653 of 2022 -:19:- _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 discharged 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. Therefore, it has been held that the complainant, who discharged his initial burden in the Crl.R.P.Nos.631 and 653 of 2022 -:20:- matter of transaction led to execution of Ext.P1 cheque, would get the benefit of twin presumptions. 26. Before conclusion, I am Inclined to address the challenge raised by the revision petitioner in the matter of imposition of fine. It is argued by the learned counsel for the accused that the Magistrate has no power to impose fine more than Rs.10,000/- as provided under Section 29(2) of Cr.P.C.. The submission appears to be correct when the Magistrate deals with a case under the Indian Penal Code and the bar under Section 29(2) of Cr.P.C. has no application, when the Magistrate is dealing with a special enactment which empowers special punishment. The rationale is too simple and is embodied in the maxim “ _**Genaralis Specialibus Non Derogant**_ ”, means special law supercedes general law. In this connection, it is apposite to refer Section 138 of the N.I.Act, which provides that when an offence punishable under Section 138 of the N.I.Act is Crl.R.P.Nos.631 and 653 of 2022 -:21:- committed, the imprisonment may extend to two years or with fine which may extend twice the cheque amount or with both. 27. In the decision reported in [2013(4) KHC 163 : 2013 (4) KLT 350 : 2014 ACD 47 : 2014 CriLJ 179 : AIR 2014 SC 771 : 2013 (16) SCC 465], **Somnath Sarkar v. Utpal Basu Mallick & anr.** while dealing with provisions to levy fine in offence under Section 138 of the N.I Act, it has been held ## thus: “First and foremost is the fact that the power to levy fine is circumscribed under the statute to twice the cheque amount. Even in a case where the Court may be taking a lenient view in favour of the accused by not sending him to prison, it cannot impose a fine more than twice the cheque amount. That statutory limit is inviolable and must be respected. It is only when the Court has determined the amount of fine that the question of paying compensation out of the same would arise. This implies that the process comprises two stages. Crl.R.P.Nos.631 and 653 of 2022 -:22:- First, when the Court determines the amount of fine and levies the same subject to the outer limit, if any, as is the position in the instant case. The second stage comprises invocation of the power to award compensation out of the amount so levied. The High Court does not appear to have followed that process. It has taken payment of Rs.80,000/as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of Rs.69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same.” 28. In this connection, another decision of the Apex Court in **Vijayan R. v. Baby and Another,** [AIR 2012 SC 528] also is of relevant. 29. In paragraph 16 of the judgment of the Apex Court directed that _unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the_ Crl.R.P.Nos.631 and 653 of 2022 -:23:- _simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such_ _amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate. Uniformity and consistency in deciding similar cases by different Courts, not only increase the credibility of cheque as a negotiable instrument, but also the credibility of Courts of justice._ 30. Thus, it is held that the Magistrate, while exercising special jurisdiction under the N.I.Act has power to impose fine provided under the statute and the bar under Section 29(2) of Cr.P.C. has no application. Therefore, this challenge found to be not sustainable. 31. It is not in dispute that a complainant, who is aggrieved by the sentence, can file revision Crl.R.P.Nos.631 and 653 of 2022 -:24:- petition and the revision court has the power to enhance/reduce or modify the sentence, within the statutory mandate of the special statute. 32. Therefore, in this matter, the Sessions Court, while considering the revision at the instance of the complainant along with the criminal appeal placed reliance to the decision reported in **Vijayan'** s case (supra) and on calculation of the interest, the sentence was modified and therefore, the said finding also is not erroneous, to be re-visited. Therefore, the conviction imposed by the trial court as well as the appellate court and the sentence modified by the appellate/revisional court do not require any interference in any manner. In the result, these revision petitions fail and are accordingly, dismissed. Considering the request of the revision petitioner/the accused, one month from today is granted to pay the fine amount and therefore, the revision Crl.R.P.Nos.631 and 653 of 2022 -:25:- petitioner/the accused is directed to appear before the trial court on 26.11.2022 to pay the fine and to undergo the default sentence. Till then, the execution of the sentence shall stand deferred. Registry is directed to forward a copy of this order to the court below concerned for information. Sd/- **A. BADHARUDEEN JUDGE** rkj