Johnson Francis v. T.T. Kuruvilla and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** **Crl.Rev.Pet.No.186 OF 2020** **AGAINST THE JUDGMENT IN CRA 128/2019 OF SESSIONS COURT, ALAPPUZHA** **AGAINST THE JUDGMENT IN ST 19/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **JOHNSON FRANCIS AGED 51 YEARS S/O.FRANCIS, AUTTOKKARAN HOUSE, PARAVATTANI DESAM, OLLUKKARA, MANNUTHI, THRISSUR-680651.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 T.T.KURUVILLA AGED 67 YEARS S/O.THOMAS VAIDYAN, THOTTATHIL HOUSE, VAZHICHERRY, ALAPPUZHA. 689 126** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031** ## **SRI AJITH MURALI-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON 18.02.2020 PASSED THE FOLLOWING:** Crl.R.P.No.186/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.186 of 2020 ------------------------------------------------Dated this the 18[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.19/2019 on the file of the Court of the Judicial First Class Magistrate-III, Alappuzha. 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 him to imprisonment till the rising of the court and also to pay a fine of Rs.7,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 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.186/2020 3 3. The petitioner filed Crl.A.No.128/2019 before the Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant is the owner of the establishment by name “Alleppey Parcel Service”. The accused came to know that the complainant was in search of a suitable property including a building for starting a branch of his establishment at Kuttanelloor in Thrissur District. The accused informed the complainant that he would sell his property having an extent of 8.910 cents and the building situated there. The accused and the complainant entered into an agreement for sale of the property. The accused received a total amount of Rs.7,00,000/- from the complainant in three Crl.R.P.No.186/2020 4 instalments and he handed over possession of the building to the complainant. Thereafter, the complainant was running his establishment in the aforesaid property. Meanwhile, the complainant came to know that the accused had mortgaged the aforesaid property to the bank for availing loan and that the aforesaid property was attached in a suit pending before the Sub Court, Thrissur. When enquired about it, the accused admitted the aforesaid fact. Then, the complainant filed a case against the accused in the Magistrate's Court at Thrissur as C.C.No.482/2015. Subsequently, settlement talks were made by the complainant and the accused in the presence of mediators and the accused signed and issued a cheque dated 01.03.2017 for Rs.7,00,000/- in discharge of the amount which he had obtained from the complainant. The complainant presented 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 lawyer 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 Crl.R.P.No.186/2020 5 the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P7 documents were marked on his side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence that he entered into an agreement with the accused for purchase of the property owned by the accused and he gave Rs.7,00,000/- to the accused in three instalments and the possession of the property was given to him by the accused. PW1 also gave evidence regarding the circumstances under which the accused issued Ext.P1 cheque dated 01.03.2017 for Rs.7,00,000/- to him in discharge of the liability. 9. The complainant produced certified copy of the compromise petition (Ext.P6) filed in the case C.C.No.482/2015 and certified copy of the order (Ext.P7) passed by the court in that case. Ext.P6 document clinches the issue. The trial court has stated in the judgment as follows: _“On perusal of Ext.P6 document, it is seen that both the complainant and the accused and their counsel have signed the said document and_ Crl.R.P.No.186/2020 6 _the issuance of cheque involved in this case is specifically seen mentioned. Ext.P7 order was passed compounding the matter based on Ext.P6. The above facts would prove the issuance of Ext.P1 cheque in favour of the complainant. The liability to pay the said amount is also seen admitted in Ext.P6.”_ ## 10. The appellate court has dealt with the evidence in this regard in the following manner: _“During cross examination of PW1, there was suggestion that cheque number was inserted in Ext.P6 subsequently. In this case, Ext.P6 and P7 are very vital documents. Ext.P6 is the certified copy of compromise petition signed between the complainant and the accused. In Ext.P6 there is clear mention that cheque No.391168 dated 01.03.2017 of Axis Bank Ltd., Thrissur branch was issued as part of settlement. The contention of the accused is that cheque number was subsequently inserted in Ext.P6 could not be believed at all as the same is a record of a court of law where from certified copies were obtained. In fact, Ext.P6 takes away the entire defence case. Similarly, Ext.P7 would go to show that in view of the compromise recorded as per Ext.P6 in that case was closed. Here, evidently as per Ext.P6, it_ Crl.R.P.No.186/2020 7 _could be gathered that the matter was settled before filing Ext.P6 compounding petition and Ext.P1 cheque was issued. However, compounding was recorded only on 07.04.2017. Thus, there is no reason to disbelieve the case of the complainant that the accused settled the dispute in the matter of property sale and in consequence thereof, Ext.P1 was issued.”_ (emphasis supplied). 11. The contents of Ext.P6 document corroborate the evidence of PW1 regarding the liability and execution of Ext.P1 cheque by the accused in discharge of the liability and delivery of it by him to the complainant. 12. Even otherwise, since the evidence of the complainant proves execution of Ext.P1 cheque by the accused, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption under Section 139 of the Act. No evidence was adduced by the accused to rebut the presumption. Nothing was also brought out in the cross-examination of PW1 to rebut the presumption. 13. When examined under Section 313 Cr.P.C, the plea of the accused was that there was no agreement between him and the Crl.R.P.No.186/2020 8 complainant but the complainant had run his establishment in his property. The accused admitted the fact that the case C.C.No.482/15 was filed against him by the complainant in the Magistrate's Court at Thrissur. His plea was that Exts.P6 and P7 were forged documents. It is relevant here to note that Exts.P6 and P7 are certified copies of the documents in the case C.C.No.482 of 2015 between the parties. 14. Moreover, the accused has not offered any satisfactory explanation as to how the cheque bearing his signature happened to be in the possession of the complainant. 15. The complainant had sent statutory notice to the accused demanding payment of the amount of the cheque. Though the accused denied receipt of the notice, Ext.P5 acknowledgment card would show that he had received the notice. He did not send any reply to the statutory notice. If he had not received an amount of Rs.7,00,000/- from the complainant before handing over possession of his property to the complainant and if he had not issued the cheque to the complainant in discharge of the aforesaid liability, the accused Crl.R.P.No.186/2020 9 would have definitely sent a reply to the notice. Silence and inaction on the part of the petitioner/accused after receiving the statutory notice from the complainant lead to an inference that the case of the complainant is true. 16. Learned counsel for the petitioner would point out that the complainant did not produce the agreement allegedly executed by him and the petitioner for purchase/sale of the property. Non-production of the aforesaid document by the complainant does not, in any way, help the accused to rebut the presumption under Section 139 of the Act. The complainant is not expected to prove the debt or the original transaction as in a suit for realisation of money (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287)** . 17. Very recently, the Apex Court has held in **Chandel v. M/s.Wockhardt Limited (2020 (1) KLT 660 (SC)** that documents showing the original transaction may be relevant in the civil court but may not be so in a case filed under Section 138 of the Act. 18. The courts below have appreciated the evidence and Crl.R.P.No.186/2020 10 made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. 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.186/2020 11 19. The trial court has shown maximum leniency in awarding sentence on the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused. 20. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. However, the petitioner is granted a period of four months from today to remit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr** **TRUE COPY** **PS TO JUDGE**