Kuriakose A.J. v. State of Kerala and Rajesh B. Panicker

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ``` CRL.REV.PET NO. 776 OF 2022 ``` ``` AGAINST THE JUDGMENT IN CRL.A.NO.129/2018 OF ADDITIONAL SESSIONS ``` ``` COURT -II, (SPECIAL COURT), KOTTAYAM ST.NO.102/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, ``` ## **`CHENGANACHERRY`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KURIAKOSE A.J. AGED 55 YEARS, S/O.THOMAS JOSEPH THAKIDIYIL HOUSE, KOCHUPALLY PARIPPADU, CHANGANACHERRY KOTTAYAM, PIN - 686537 BY ADVS. P.RANI DIOTHIMA P.V.RADHAMANI ``` ## **`RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2RAJESH B. PANICKER CHERUKAPURA HOUSE, PERUNNAI P.O. CHANGANACHERRY KOTTAYAM, PIN - 686102 R1 BY SR.PP-SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 776 OF 2022 2 ``` ## ORDER This revision has been filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C’ hereinafter), challenging judgment in S.T.No.102/2017, dated 23.7.2018 on the file of the Judicial First Class Magistrate Court - II, Changanacherry and also the judgment in Crl.Appeal No.129/2018 on the file of the Additional Sessions Court – II, Kottayam. 2. The revision petitioner is the accused in the above case. 3. The respondents herein are the original complainant as well as the State of Kerala. 4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Notice to the second respondent stands dispensed with. 5. I shall refer the parties as ‘complainant’ and ‘accused’, for convenience. 6. Short facts of the case: The complainant launched prosecution alleging commission of ## **`CRL.REV.PET NO. 776 OF 2022 3`** offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter), when two cheques for Rs.1,00,000/-, (Rupees One Lakh only) and Rs.2,00,000/- (Rupees Two Lakhs only), dated 27.12.2013 and 17.02.2014, allegedly issued by the accused, were dishonoured when the same was presented for collection, for want of funds. 7. The trial court secured the presence of the accused for trial and recorded evidence. During trial, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. No evidence adduced from the side of the defence. 8. The trial court appreciated the evidence and found that the accused committed offence punishable under Section 138 of the NI Act and he was sentenced to undergo Simple Imprisonment for a period of three months and to pay compensation of Rs.3,00,000/- (Rupees Three Lakhs only). Default imprisonment for a period of three months also was imposed. 9. The accused challenged the order of trial court before the Additional Sessions Court, Kottayam in Crl.Appeal No.129/2018. As per judgment, dated 3.2.2022, the learned Additional Sessions Judge also confirmed the finding of the trial court and dismissed the appeal. ## **`CRL.REV.PET NO. 776 OF 2022 4`** 10. While arguing to upset the concurrent verdicts of the trial court as well as the appellate court, the learned counsel argued nothing to substantiate interference in the concurrent verdicts by this Court with the limited power of revision. However, she submitted that Rs.1,00,000/already paid and the accused is ready to pay remaining amount of Rs.2,00,000/-, within a period of six months. 11. The grounds raised in this revision petition require reappreciation of evidence and the same, in fact, not argued at the time of hearing. Further, the power of revision available to this Court is too limited and the said power does not permit re-appreciation of evidence. 12. 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 re-appreciate 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 ## **`CRL.REV.PET NO. 776 OF 2022 5`** 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 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. …” 13. 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 ## **`CRL.REV.PET NO. 776 OF 2022 6`** 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 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.” 14. 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 ## **`CRL.REV.PET NO. 776 OF 2022 7`** which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 15. Coming back, in this matter, the courts below given emphasis to the evidence to PW1 and Exts.P1 to P3, to hold that Exts.P1(a) and P1(b) cheques were issued for the consideration alleged by the complainant and in turn, benefit of presumptions also given in favour of the complainant. 16. 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. 17. 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 ## **`CRL.REV.PET NO. 776 OF 2022 8`** 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 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.” ## **`CRL.REV.PET NO. 776 OF 2022 9`** 18. 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 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.” 19. 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**_ ## **`CRL.REV.PET NO. 776 OF 2022 10`** 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 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 ## **`CRL.REV.PET NO. 776 OF 2022 11`** debt.” 20. In this matter, nothing available to interfere with the conviction entered by the trial court. However, considering the request of the learned counsel for the accused/revision petitioner, the substantive sentence imposed by the trial court for a period of three months and confirmed by the appellate court requires modification, to meet the ends of justice. Accordingly, the Simple Imprisonment imposed by the trial court and confirmed by the appellate court stands modified for a day till rising of the court and to pay a fine of Rs.3,00,000/- and the fine shall be paid as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. In default of payment of fine, the accused shall undergo Rigorous Imprisonment for a period of three months. 21. The learned counsel for the accused/revision petitioner sought for six months time to pay the balance amount. Considering the request of the learned counsel for the revision petitioner, I am inclined to grant two months time from today, to pay the fine amount. Therefore, the accused/revision petitioner is directed to surrender before the trial court to undergo the sentence on or before 21.1.2023. Till then, the execution of ``` CRL.REV.PET NO. 776 OF 2022 12 ``` sentence shall stand deferred. If the accused fails to surrender as directed, the trial court is directed to execute the sentence. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- A. BADHARUDEEN JUDGE Bb //TRUE COPY// PA TO JUDGE