Joise v. George Kutty and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 CRL.REV.PET NO. 824 OF 2022 ``` ``` AGAINST THE JUDGMENT IN STC.NO.633/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TALIPARAMBA ``` ``` CRL.A.NO.156/2016 OF ADDITIONAL SESSIONS COURT - IV, THALASSERY ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` JOISE AGED 41 YEARS S/O.SEBASTIAN, MOOLEKKATTIL HOUSE, PATHANPARA.P.O, VELLAD AMSOM, NADUVIL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670571 BY ADVS. V.A.SATHEESH V.T.MADHAVANUNNI ANAND V.S ``` ## **`RESPONDENTS/RESPONDENTS & COMPLAINANT & STATE:`** ``` 1GEORGE KUTTY, AGED 41 YEARS S/O.JOHN, MUKKATTUKAVUNKAL HOUSE, NADUVIL.P.O, NADUVIL AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670582 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 R2 BY SR.PP-SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 824 OF 2022 2 ``` ## ORDER This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter). The revision petitioner is the accused in S.T.C.No.633/2013, on the file of the Judicial First Class Magistrate Court, Taliparamba. He impugns the said judgment as well as the judgment in Crl.A.No.156/2016, dated 10.3.2022 arising therefrom. 2. I shall refer the parties in this Revision Petition as to their status before the trial court as `complainant' and `accused'. 3. The summary of the case put up by the complainant is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter), when cheque for Rs.1,55,000/- (Rupees One Lakh Fifty Five Thousand only), dated 15.11.2012, alleged to be issued by the accused to the complainant, towards part payment of consideration due to the complainant for the sale of rubber trees, got dishonoured for want of funds. The complainant raised contention that despite having issued notice of dishonour of the cheque, the accused failed to make payment. ## **`CRL.REV.PET NO. 824 OF 2022 3`** 4. The trial court took cognizance of this matter and secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P6 marked on the side of the complainant. After conclusion of the prosecution evidence, the accused was given opportunity to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C., but no defence evidence was adduced. 5. The learned Magistrate appraised the evidence and finally found that that the complainant discharged his initial burden in the matter of transaction which led to execution of Ext.P1 cheque, in consequence of Ext.P6 agreement dealing with the said transaction. Accordingly, benefit of presumptions also given in favour of the complainant. Thereafter, the trial court convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.1,55,000/- (Rupees One Lakh Fifty Five Thousand only) to the complainant. Default imprisonment for a period of three months also was imposed for non payment of compensation. 6. The accused challenged the judgment of the trial court in Crl.A.No.156/2016. As per the judgment, dated 10.3.2022, the learned Sessions Judge also dismissed the appeal, confirming the conviction and ``` CRL.REV.PET NO. 824 OF 2022 4 ``` sentence. 7. In this matter, the trial court as well as the appellate court appreciated and re-appreciated the evidence and entered into conviction and sentence. Nothing argued to substantiate that the concurrent verdicts in any way suffer from any infirmity so as to have interference by this Court by exercising the limited power of revision. 8. 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 reappreciate 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 ## **`CRL.REV.PET NO. 824 OF 2022 5`** 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. …” 9. 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 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 ## **`CRL.REV.PET NO. 824 OF 2022 6`** 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.” 10. 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 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 or fundamental violation of the principle of law, then only the power of revision would be made available. 11. The learned counsel for the accused argued that the courts below relied on Ext.P6, an agreement, unilaterally executed and signed by the ## **`CRL.REV.PET NO. 824 OF 2022 7`** accused to prove issuance of Ext.P1 cheque and the transaction regarding sale of rubber trees. But the complainant miserably failed to prove Ext.P6. Therefore, the courts below went wrong in finding that the accused committed offence punishable under Section 138 of the NI Act. In paragraph No.10 of the trial court judgment, this contention has been appraised. The trial court observed that the burden is upon the accused to prove that he did not sign Ext.P6. Further, he had not denied his signature in Ext.P6. But his contention was that Ext.P6 agreement was prepared in a blank signed paper entrusted by him, by misusing the same. The trial court found that the number of the cheque mentioned in Ext.P6 is same as that of Ext.P2 and negatived the said contention. In this matter, nothing substantiated to disbelieve the version of PW1 in the matter of transaction led to execution of Ext.P1 cheque. Ext.P6 is a collateral agreement to prove the transaction. Thus, it appears that the court below rightly given emphasis to the evidence of PW1 to find that the complainant discharged his initial burden in the matter of transaction which led to execution of Ext.P1 cheque. 12. In this case, the courts below given benefit of presumptions under Sections 118 and 139 of the NI Act in favour of the complainant on the finding that the complainant discharged his initial burden in the matter of execution of ## **`CRL.REV.PET NO. 824 OF 2022 8`** Ext.P1 cheque in consequence of Ext.P6 agreement dealing with the said transaction. Law regarding presumption is also well settled by law. 13. It is a settled law that once the complainant discharged his initial burden in the matter of transaction led to execution of cheque, the complainant would get benefit of twin presumptions under Sections 118 and 139 of the N.I Act. The law is settled on this point. 14. 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 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 ## **`CRL.REV.PET NO. 824 OF 2022 9`** 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.” 15. 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 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 ## **`CRL.REV.PET NO. 824 OF 2022 10`** 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.” 16. 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 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 2nd 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 ## **`CRL.REV.PET NO. 824 OF 2022 11`** 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 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.” 17. In this matter, nothing substantiated to interfere with the concurrent finding of conviction rendered by the trial court as well as the appellate court. But in the interest of justice, as pointed out by the learned counsel for the accused, sentence needs to be modified, to meet the ends of justice. 18. Accordingly, this revision petition is allowed in part. The conviction entered by the trial court as well as the appellate court stands confirmed and ``` CRL.REV.PET NO. 824 OF 2022 12 ``` the sentence stands modified, whereby, the accused/revision petitioner is sentenced to undergo imprisonment for a day till rising of the court and to pay fine of Rs.1,55,000/- (Rupees One Lakh Fifty Five Thousand only). The fine amount shall be given as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. In default of payment of fine/compensation, the accused shall undergo imprisonment for a period of three months. Considering the request of the learned counsel for the revision petitioner, one month's time from today is granted to pay the fine/compensation. Therefore, the accused/revision petitioner is directed to surrender before the trial court to undergo the sentence on or before 31.12.2022. Till then, the execution of sentence shall stand deferred. If the accused fails to surrender as directed, the trial court is directed to execute the modified sentence as per law, without fail. Sd/A. BADHARUDEEN JUDGE Bb //TRUE COPY// PA TO JUDGE