# `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
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PRESENT
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944
CRL.REV.PET NO. 715 OF 2021
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AGAINST THE JUDGMENT DATED 19.12.2013 IN ST CASE NO.4806/2003 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPALAM
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JUDGMENT DATED 16.03.2021 IN CRL.A NO.29/2014 OF III ADDITIONAL
DISTRICT AND SESSIONS COURT, PALAKKAD
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## `REVISION PETITIONER/APPELLANT/ACCUSED:`
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K.A.MANIKANTAN,
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S/O.AYYAPPAN,
KARIMPANACKAL VEED , P.O. KONDAZHI,
THRISSUR DISTRICT, THALAPPALLY TALUK, PIN:679 105,
ADVOCATE, WADAKKANCHERY
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BY ADV.SRI.JOSHI N.THOMAS
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## `RESPONDENTS/RESPONDENTS/COMPLAINANT:`
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1.P.PHILIP,
AGED 37,
S/O.PAPPACHAN, 'NIRMALYAM',
SRK NAGAR, 19TH MILE,
PALAPPURAM,OTTAPPALAM TALUK, PIN: 679103.
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2.STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
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BY ADVS.SRI.SREEHARI
SRI.VISHNU P.S.(K/375/2021)
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R2 BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH
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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
11.07.2022, THE COURT ON 12.08.2022 PASSED THE FOLLOWING:
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Crl.R.P. No.715 of 2021
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## MARY JOSEPH, J.
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Crl.R.P. No. 715 of 2021 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of August, 2022
## O R D E R
This revision is filed challenging the judgment passed by III Additional District and Sessions Court, Palakkad (for short ‘the appellate court’ ) in Criminal Appeal No. 29/2014 whereby the judgment of Judicial First Class Magistrate Court, Ottappalam (for short ‘the trial court’) in S.T. Case No.4806/2003 stands modified.
2. The trial court found the revision petitioner guilty for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I.Act’) and convicted and sentenced him to undergo simple imprisonment for a period of three months and to pay compensation of Rs.1,40,000/- to the complainant under Section 357 (3) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). It also directed the revision petitioner to undergo simple imprisonment for three
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months in default of payment of compensation. Set off was also allowed under Section 428 Cr.P.C. When the judgment of the trial court was assailed in appeal, the appellate court allowed the appeal in part and modified the sentence by directing the revision petitioner to deposit a sum of Rs.1,50,000/- as fine, which on realisation, was directed to be defrayed as compensation to the complainant under Section 357(1) Cr.P.C. The revision petitioner was also directed by the appellate court to undergo simple imprisonment for three months in case of default in deposit of the fine amount. Petitioner was also directed to appear before the court on 26/04/2021 to receive the sentence. Against the judgment stands modified in the appeal that the accused has approached this Court in the revision on hand.
3. It is contended by the learned counsel for the revision petitioner that Ext.D1, relied on by the defence was not appreciated by the trial court as well as the appellate court in it’s proper perspective. According to him Ext.D1 has been sent for examination to the Forensic Science Laboratory to tender its
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opinion after analysis on authorship of signature contained therein.
4. According to the learned counsel, the signature found in Ext. D1, was not denied by him but said that it has only some resemblance with his signature. Ext.P1 was sent for forensic examination and Ex.D4 report was obtained, wherein it was certified that the person who has authored the disputed signature in Ext.D1 himself was the author of the specimen signature available before the court. Ext.D1 when put to PW1, he also admitted some resemblance for it with that of his own. The court below observed improbability in the case put forth by the defence for the reason that the accused who is an advocate by profession has introduced him to the complainant at the time of borrowal of Rs.30,000/-. The specific case of the accused was that at the relevant time when Rs.30,000/- was advanced to DW1 on his introduction, some of his signed cheques have been obtained as security by the complainant. According to him one among the cheques obtained from him was lateron presented for encashment before the bank and on being bounced the
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prosecution in question was launched. According to the accused, Ext.D1 document would disclose that at the time when repayment of the amount was made, the documents obtained from DW1 as security were returned but those obtained from the accused as security were retained. Ext.D1 was relied on by the defence to point out that the documents of the accused were informed as in the custody of the counsel for the complainant. The accused has no case that the documents which were informed as in the custody of the lawyer of the complainant was ever attempted to be released in his favour. The accused has not raised a claim that the counsel for the complainant was ever approached to get back the documents. There is not even a case for him that a complaint had been preferred before any authorities against retention of the documents. Therefore, Ext.D1 only helped to create an improbable circumstance.
5. The learned counsel for the revision petitioner relied on the dictum in Basalingappa v. Mudibasappa [2019 (5) SCC 418] to contend that the standard of proof required to establish the defence taken by the accused in a prosecution under Section
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138 NI Act is only “preponderance of probabilities” . It has been held in the case that preponderance of probabilities can be drawn not only from the materials physically brought on record by the parties but also on the basis of the doubtful circumstances that can be discerned from the evidence. True that presumption under Section 139 N.I. Act is liable to be rebutted on preponderance of probabilities. But in the case on hand, the accused failed to draw preponderance of probabilities in evidence tendered by the complainant, liable to rebut the presumption. The accused, an Advocate by profession who is well aware of the consequences that may result from retention of a cheque of him by a party evenafter discharge by him of the monetary liability for which it was issued, prudence requires him to initiate legal action in the context alleged and when he failed to resort to that, adverse inference could be drawn against the defence set up by him. The dictum relied on by the learned counsel is only to be discarded as not applicable in the context.
6. The specific case of the complainant was that the accused was his counsel for sometime and at the relevant time some
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signed blank papers and cheques have been obtained from him. According to him one among the signed blank papers has been fabricated into Ext.D1.
7. The version of DW1 is unbelievable for the reason mainly that the cheque of the accused given as security for a transaction involving monetary liability between himself and the complainant, when retained by the complainant evenafter getting the entire liability under the transaction discharged by him, he did not raise his voice against or initiate any action to get it returned to him, especially when some other documents entrusted were returned. He has no case that he had ever approached the complainant for getting back the documents. Therefore the case set up by the accused with a view to rebut the presumption was of no help to him. The court below did not rely on the version tendered by DW1 and the documentary evidence including Ext.D1 to rebut the presumption.
8. The second argument advanced was that the complainant has no source of money at the relevant time when Rs.1,40,000/- was allegedly advanced. Complainant who was
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examined as PW1 was cross examined with reference to his source of income to advance the money. According to PW1, he was an employee in a company named Steel Industries and was getting Rs.7,000/- as salary per month. He also deposed to had obtained some money from his wife’s house. According to him, an agreement for sale was executed by him with some other person and Rs.60,000/- was paid as advance sale consideration. According to him, the balance amount could not be paid within the time period stipulated under the agreement for sale for the reason that the sum advanced as loan to the accused was not repaid to him in time. Therefore, as PW1 the complainant has put forth a cogent and reliable version regarding his financial capacity to advance Rs.1,40,000/- to the accused.
9. The revision petitioner has also relied on K.Subramani v. K.Damodara Naidu [2015 (1) SCC 99] wherein the impact on failure to establish the source of income is discussed with. The source of income in the case on hand was stated by the complainant as a sum of Rs.1,49,205/- obtained by him from LIC in the year 1997 when the amount was advanced to the
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accused. The deposition of the wife of the complainant in another case was put to him during cross examination. It has been stated by the wife of the complainant in the other case that the present accused had not taken any loan from her husband. The Apex Court has observed in the above circumstance that the trial court is justified in holding that the complainant had no source of income to advance Rs.14,00,000/-. Therefore the argument of the learned counsel that the complainant failed to establish his source of money is only to be discarded being totally devoid of any basis. The argument was rightly discarded by the court below.
10. The factual situation in the case on hand being non-identical, the dictum relied on is only to be discarded.
11. In view of Bir Singh v. Mukesh Kumar [2019 (1) KHC 774 (SC)] the apex court has held that concurrent findings of the trial court as well as the appellate court on guilt of the accused under Section 138 N.I.Act and orders of conviction and sentence cannot be disturbed, unless existence of an error of law or a jurisdictional error is brought to light.
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12. In the case on hand the revision petitioner has failed to point out an error of law or a jurisdictional error. Though he has attempted to raise doubts on the source of income of the complainant and also to place reliance on the defence put forth, the courts below found the case as unreliable. In the aforesaid circumstances, the revision is only to fail.
In the result, revision is dismissed.
Sd/-
MARY JOSEPH JUDGE
MJL
