Jyothi Prasad v. Prakasan K.V and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **Crl.Rev.Pet.No.287 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CC 465/2015 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (SPECIAL COURT)FOR TRIAL OF CASES U/S.138, (NI ACT) CASES, KOZHIKODE DATED 29.8.2017.** **AGAINST THE ORDER/JUDGMENT IN CRA 331/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **JYOTHI PRASAD AGED 43 YEARS S/O. SAHADEVAN, 43 YEARS, SREYAS, H.NO.467(179E) 12 MODERN KOTTODINILAM, ARAKKINAR, BEYPORE CALICUT. PRESENTLY RESIDING AT FLAT NO.G1 HAMTON, MANNOR, WEST HILL CALICUT.** **BY ADVS. SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 PRAKASAN K.V AGED 42 YEARS S/O. PURUSHOTHAMAN, 42 YRS, THRIKKALPARAMBATH HOUSE, P.O. CIVIL STATION, CALICUT-673020. 2 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **SRI.C.K.PRASAD- PUBLIC PROSECUTOR.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON 11.3.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.287 OF 2020** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.287 of 2020 --------------------------------------------Dated this the 11[th] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.465/2015 on the file of the Court of the Judicial First Class Magistrate (N.I.Act cases), Kozhikode. 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 the petitioner to pay a fine of Rs.5,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of four months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.Appeal No.331/2017 before the Court of Session, Kozhikode challenging the order of conviction **Crl.Rev.Pet.No.287 OF 2020** **3** and the sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence 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 accused had borrowed Rs.5,00,000/- from the complainant. In repayment of that amount, the accused issued a cheque dated 13.11.2012 for Rs.5,00,000/- to the complainant. When the complainant presented the cheque in the bank, it was dishonoured 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 sent a reply raising false contentions. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got **Crl.Rev.Pet.No.287 OF 2020** **4** himself examined as PW1 and a witness was examined on his side as PW2. Exts.P1 to P7 documents were also marked on his side. No evidence was adduced by the accused. Ext.C1 was marked as court exhibit. 8. When examined as PW1, the complainant gave evidence that he and the accused were close friends. He gave evidence that the accused used to borrow money from him. He stated that, on 6.5.2012, the accused borrowed an amount of Rs.5,00,000/- from him. PW1 would say that his friend Nishad was then present. PW1 also gave evidence that, on demand made for repayment of the amount, the accused executed Ext.P1 cheque for Rs.5,00,000/and gave it to him. 9. Nishad was examined as PW2 by the complainant to prove the transaction and also the issuing of the cheque by the accused. PW2 gave evidence that he saw the complainant giving Rs.5,00,000/- to the accused. He also gave evidence that the accused issued Ext.P1 cheque to the complainant in his presence. 10. PW1 and PW2 have given evidence that the accused **Crl.Rev.Pet.No.287 OF 2020** **5** himself filled up the cheque and he signed it and gave it to PW1. 11. The evidence of PW1 and PW2 would prove that the accused had borrowed Rs.5,00,000/- from the complainant and the accused had executed and issued Ext.P1 cheque to the complainant in discharge of that liability. 12. The plea of the accused was that the complainant is an advocate clerk and he had entrusted with the complainant signed blank cheques and stamp papers for the purpose of settlement of a case and that the complainant misused one of the cheques and filed the case. It was the plea of the accused that he is not the author of the entries in the cheque. 13. The cheque was sent for expert opinion at the instance of the accused to ascertain whether the entries in it had been made by him or not. The report of the handwriting expert was marked as Ext.C1 by the trial court without examining the expert. 14. Learned counsel for the revision petitioner contended that the trial court should not have relied upon Ext.C1 report, **Crl.Rev.Pet.No.287 OF 2020** **6** without examining the expert, to find that the accused is the author of the entries in Ext.P1 cheque. Even if this plea is accepted and if Ext.C1 report of the expert is eschewed from evidence, it would not in any manner enable the accused to prove his plea or to rebut the presumption under Section 139 of the Act. It was the plea of the accused that he was not the author of the entries in Ext.P1 cheque. It was at the instance of the accused that the cheque was sent for expert opinion. If the accused did not choose to examine the expert, as the report of the expert was not in his favour, it does not in any manner affects the credibility of the evidence of PW1 and PW2 that the accused himself wrote the entries in the cheque and signed it. Therefore, even if Ext.C1 report is eschewed from evidence, it can be found that the evidence of PW1 and PW2 is sufficient to prove that the cheque was executed by the accused and issued by him to the complainant. 15. 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 **Crl.Rev.Pet.No.287 OF 2020** **7** rebut the presumption. No evidence was adduced by him to rebut the presumption. Nothing was also brought out in the cross examination of PW1 and PW2 which would enable the accused to rebut the presumption under Section 139 of the Act. 16. It is also to be noted that the plea of the accused that he gave signed blank cheques to an advocate clerk for settlement of a case cannot be believed. Even if such a plea is accepted as probable, even then, the very fact that the accused did not take any steps against the complainant for misuse of the cheque, would indicate that the plea of the accused is not true. 17. A plea was raised by the accused before the trial court that the complainant had no financial capacity to lend an amount of Rs.5,00,000/-. This plea was raised only during the hearing of the case before the trial court. No question was put to PW1 regarding the source of money. The financial capacity of the complainant was not challenged by the accused during the cross examination of the complainant. In such circumstances, the complainant had no obligation to prove his financial capacity or **Crl.Rev.Pet.No.287 OF 2020** **8** the sources of the money. The trial court has dealt with this aspect in its judgment as follows: “Learned counsel for accused submitted that the complainant has not produced any document to prove the source of money advanced to the accused. No question was put to PW1 about the source of money. No suggestion was put to PW1 in cross-examination denying his financial capacity to lend Rs.5,00,000/- to the accused. PW1 stated that he is doing real estate business, and the amount available with him was paid to the accused. The burden of the complainant to prove the original transaction and source of money arise only when there are suspicious circumstances regarding the transaction and execution and issuance of cheque by the accused.” The aforesaid view taken by the trial court cannot be found fault with. When the accused does not question the financial capacity of the complainant, there is no obligation on the complainant to prove it. (See **APS Forex Services Private Limited v. Shakti International Fashion Linkers (2020 (2) KLT 21 SC)** . 18. The trial court as well as the appellate court has appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence **Crl.Rev.Pet.No.287 OF 2020** **9** by the courts below and also the concurrent findings made against the petitioner. 19. 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 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 **Crl.Rev.Pet.No.287 OF 2020** **10** offence under Section 138 of the Act is only to be confirmed. 20. The trial court has imposed only a sentence of fine of Rs.5,00,000/- on the petitioner/accused. The sentence imposed on the petitioner/accused also does not warrant interference by this Court. 21. 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/accused is granted a period of six months from today to deposit the fine amount in the trial court. **Sd/R.NARAYANA PISHARADI, JUDGE** al/-