Johnson Varghese (Pastor) v. Satheesan Pillai and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **Crl.Rev.Pet.No.299 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRA 295/2008 DATED 16.08.2017 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA** **AGAINST THE ORDER/JUDGMENT IN ST 855/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **JOHNSON VARGHESE (PASTOR) AGED 53 YEARS S/O. K.C. GEEVARGHESE T.C., 14/452, HEBRON BUILDING, NANDAVANAM, THIRUVANANTHAPURAM-695 033** **BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **1 SATHEESAN PILLAI S/O. CHELLAPPAN PILLAI, KOICKAL HOUSE, KALANJOOR VILLAGE, ADOOR TALUK-691 523** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031** ## **PUBLIC PROSECUTOR SRI.C.K.PRASAD** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.03.2020, THE COURT ON 12.3.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.299 OF 2020** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.299 of 2020 --------------------------------------------Dated this the 12[th] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.855/2007 on the file of the Court of the Judicial First Class Magistrate -I, Pathanamthitta. 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 undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,40,000/- 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.Rev.Pet.No.299 OF 2020** **3** 3. The petitioner filed Crl.Appeal No.295/2008 before the Court of Session, Pathanamthitta 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 and the accused were acquainted with each other. The accused had borrowed an amount of Rs.1,40,000/- from the complainant on 1.4.2006. On 7.4.2006, the accused issued a cheque dated 10.4.2006 for Rs.1,40,000/- to the complainant in discharge of the liability. 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 **Crl.Rev.Pet.No.299 OF 2020** **4** payment of the amount of the cheque. The accused received the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P6 documents were also marked on his side. No oral evidence was adduced by the accused but Exts.D1 and D2 documents were marked on his side. 8. There was a delay of 23 days in filing the complaint. The delay in filing the complaint was condoned by the trial court, before taking cognizance of the offence. The delay was condoned after hearing the accused also. 9. When examined as PW1, the complainant gave evidence that the accused borrowed an amount of Rs.1,40,000/- from him on 1.4.2006 in the presence of one Justin. PW1 also gave evidence that on 7.4.2006, the accused issued a cheque dated 10.4.2006 for Rs.1,40,000/- to him in discharge of the liability. PW1 would say that it was in the presence of Justin that the accused issued the cheque. **Crl.Rev.Pet.No.299 OF 2020** **5** 10. PW1 gave evidence that it was in his presence that the accused signed the cheque. The accused does not dispute the fact that the cheque bears his signature. In such circumstances, the evidence of PW1 is sufficient to prove the execution of the cheque by the accused. 11. Once execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. No evidence was adduced by the accused to rebut the presumption under Section 139 of the Act. Nothing was also brought out in the cross examination of PW1 which would enable the accused to rebut the presumption. Exts.D1 and D2 documents are only the reply notice issued by the accused and the postal receipt for sending that notice. 12. The plea of the accused was that he had given a signed blank cheque to Justin as security in a transaction between Justin and the complainant and that the complainant misused the aforesaid cheque. No evidence was adduced by the **Crl.Rev.Pet.No.299 OF 2020** **6** accused to prove this plea. Justin is said to be a mutual friend of the complainant and the accused. Justin was not examined by the accused to prove his plea. 13. According to the complainant, he had not received the reply notice sent by the accused. However, in Ext.D1 reply notice, the accused had no case that he had given the cheque to Justin as a security in any transaction. 14. In the aforesaid circumstances, I find no illegality, impropriety or perversity in the appreciation of evidence by the courts below and the concurrent findings made against the petitioner. 15. The courts below have appreciated the evidence and made concurrent findings. 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 **Crl.Rev.Pet.No.299 OF 2020** **7** 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. 16. The trial court has imposed a sentence of imprisonment for a period of six months on the petitioner/ accused. The appellate court did not interfere with the substantive sentence of imprisonment imposed on the petitioner/accused. Considering the nature of the offence and the facts and circumstances of the case, I find that it is not necessary to impose substantive sentence of imprisonment on the petitioner/accused. The sentence imposed on the **Crl.Rev.Pet.No.299 OF 2020** **8** petitioner/accused in that regard is liable to be set aside. 17. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused by the trial court under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. The sentence of simple imprisonment for a period of six months imposed on the petitioner/accused by the trial court, which stands affirmed by the appellate court, is set aside. In supersession of the sentence imposed on the petitioner/accused by the courts below, he is sentenced to pay a fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of one month. Needless to state that,if the fine amount is realised, it shall be given as compensation to the complainant. The petitioner/accused is granted a period of three months from today to remit the fine amount in the trial court. ## **Sd/-** ## **R.NARAYANA PISHARADI, JUDGE** al/-