M. Nazarudeen v. P.P. Mathai Kunju and State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 ``` ## `CRL.REV.PET NO. 534 OF 2023` ``` AGAINST JUDGMENT DATED 10.08.2022 IN CRL. APPEAL NO. 311/2020 OF THE COURT OF ADDL. DISTRICT & SESSIONS COURT, MUVATTUPUZHA IN S.T.NO.2384 OF 2011 DATED 17.11.2019, ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY. ``` ## `REVISION PETITIONER/APPELLANT/ACCUSED:` ``` M. NAZARUDEEN AGED 65 YEARS S/O MYTHEENKUNJU, THEKKEMUNJANATTU HOUSE, TAGORE NAGAR, MANAYILKULANGARA, THIRUMULAPURAM P.O, KOLLAM-689115 (NOW RESIDING AT HOUSE FLAT NO.10D, PHASE-II, SILVER LAWN, EDAPALLY, COCHIN, PIN - 682024 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA VIPIN M.V. MUHAMMED SUHAIR C.A ABEY GEORGE HARISH V.S. RAMU SUBHASH SWAMINATHAN K.S. ANANTHAKRISHNAN R. ``` ## `RESPONDENTS/RESPONDENTS/ COMPLAINANT & STATE:` ``` 1P.P. MATHAI KUNJU, S/O P.M. PAILY, PALATHADATHIL HOUSE, VADAVUCODE P.O, VADAVUCODE VILLAGE, KUNNATHUNAD TALUK., PIN - 682310 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN - 682031 ``` ``` BY ADV AKHIL ALPHONSE G. ``` Crl.R.P No. 534 of 2023 2 ## `OTHER PRESENT:` ``` PP M P PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No. 534 of 2023 3 ## **ORDER** ## **Dated this the 25th day of July, 2023** This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the accused in S.T.No.2384/2011 on the files of the Judicial First Class Magistrate Court, Kolencherry and the revision petitioner assails judgment in the above case, dated 17.11.2019 and judgment in Crl.Appeal No.311/2020, dated 10.08.2022. 2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State. Notice to the complainant (1[st] respondent) stands dispensed with. 4. In this matter, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Crl.R.P No. 534 of 2023 4 Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience), pursuant to dishonour of cheque for Rs.7,00,000/- (Rupees Seven Lakh only), dated 08.06.2011, for want of funds in the account of the accused to honor the cheque and on failure by the accused to repay the cheque amount even after statutory demand. 5. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 examined and Exts.P1 to P7 marked on the side of the complainant. After questioning the accused under Section 313 (1)(b) of the Cr.P.C., when opportunity was given, Exts.D1 to D4 marked on the side of the defence and Ext.C1 was also marked. 6. Thereafter, the trial court appraised the evidence and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Crl.R.P No. 534 of 2023 5 Rs.9,00,000/- and the fine was ordered to be paid as compensation to the complainant and in default of payment of fine, simple imprisonment for three months also was imposed. 7. Although, the accused challenged the conviction and sentence imposed by the trial court, before the Additional Sessions Judge, the learned Additional Sessions Judge also confirmed the conviction and sentence imposed by the trial court. 8. In this matter, on perusal of the judgments under challenge, it could be gathered that, the courts below given emphasis to the evidence of PW1 and Exts.P1 to P7 to hold that the complainant succeeded in establishing the transaction led to execution of Ext.P1 cheque. Therefore, the courts below given benefit of twin presumptions in favour of the complainant under Sections 118 and 139 of the N.I.Act. 9. Law regarding presumption is well settled. In this connection, I would like to refer a 3 Bench Crl.R.P No. 534 of 2023 6 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 punishable 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 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 Crl.R.P No. 534 of 2023 7 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.” 10. 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 Crl.R.P No. 534 of 2023 8 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.” 11. 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 Crl.R.P No. 534 of 2023 9 (1) KLT OnLine 1132], **M/s.Kalamani Tex & 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 2[nd] 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. …................ 12. Even if we take the arguments raised by the appellants at face value that only a blank cheque Crl.R.P No. 534 of 2023 10 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.” 12. When this matter is taken for hearing, the learned counsel for the revision petitioner/appellant prayed for four months time to pay the fine amount since he had nothing to be argued on merits. However, on verification of the available records, it is discernible that this is the second revision arose out of one litigation filed before this Court, after remand of this matter by this Court allowing Crl. RP No. 1089/2015 as per order dated 03.04.2018. The Crl.R.P No. 534 of 2023 11 history of the case has been narrated in detail in paragraphs Nos. 6 and 7 of the trial court judgment and as such the same are extracted hereunder for clarity: “6. Earlier, from the side of the accused DW1 and DW2 were examined and Exts D1 to D4 were marked. Thereafter the learned Presiding Officer then heard both sides and by way of the judgment dated 28-10-2013, the accused was found guilty and he was sentenced to undergo simple imprisonment for six months and directed to pay fine of Rs. 7,00,000/- (Rupees Seven Lakhs only). The default sentence of two months simple imprisonment was also imposed upon the accused. Against the conviction and the sentence dated 28-10-2013, the accused approached before the Hon’ble Appellate court by way of Crl. Appeal No. 578 of 2013. The Hon’ble Appellate court by way of the judgment dated 18-06-2015 allowed that appeal in part. That is, the Hon’ble Appellate court confirmed the conviction but reduced the sentence of imprisonment as simple imprisonment till rising of the court. The sentence of fine remained unchanged. Against the finding of the Hon’ble Appellate Court, the accused approached before the Hon’ble High Court of Kerala by filing Criminal Rev Crl.R.P No. 534 of 2023 12 Petition No. 1089 of 2015. The Hon’ble High Court by way of the Order dated 03-04-2018 set asided the judgment of the courts below and the matter was remitted back to this court. The Hon’ble High Court directed this court to send the original of Ext P1 cheque along with the admitted signatures of the accused to the Forensic Science Laboratory, Government of Kerala, Thiruvananthapuram for expert opinion. The Hon’ble High Court further directed to record the evidence of DW2 regarding the aspects relating to Exts. D3 and D4. 7. After the remand of the matter, Ext.P1 along with the admitted signatures of the accused was forwarded to the Forensic Science Laboratory, Government of Kerala, Thiruvananthapuram for expert opinion. After obtaining report from the Forensic Science Laboratory, Government of Kerala, Thiruvananthapuram, DW2 was recalled and he was examined further regarding the aspects relating to Exts D3 and D4 as directed by the Hon’ble High Court of Kerala. The Forensic Science Laboratory report was marked with consent as Ext C1.” 13. It is to pertinent to note that even though the accused disputed his signature in the cheque and the court remanded back the matter before the trial court,Ext.C1, expert opinion obtained from the Crl.R.P No. 534 of 2023 13 Forensic Science Laboratory, Thiruvananthapuram, negatived the said contention and supported the case of the complainant. In fact, the courts below rightly appreciated and re appreciated the evidence and the same resulted in conviction and sentence now under challenge. As such the concurrent verdicts do not require any interference at the instance of this Court, by exercising the power of revision. 14. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of the Cr.P.C. r/w Section 397, which 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 Crl.R.P No. 534 of 2023 14 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 re appreciate 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 re appreciating the oral evidence. ...” 15. 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 Crl.R.P No. 534 of 2023 15 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 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 Crl.R.P No. 534 of 2023 16 judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 16. 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 non-consideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle Crl.R.P No. 534 of 2023 17 of law, then only the power of revision would be made available. 17. To sum up, in the instant case, nothing substantiated to revisit the concurrent findings, by exercising the limited power of revision available to this Court. 18. The learned counsel for the petitioner sought for six months time to pay the compensation. Whereas, the counsel for the 1[st] respondent/ complainant opposed grant of time and submitted that the complainant is a person who is aged 82 years and grant of more time would be prejudicial to the interest of the complainant/1st complainant. In fact, nothing substantiated in this revision petition to interfere with the concurrent findings of conviction as well as sentence of imprisonment, in any manner. 19. In the result, this revision petition fails and is accordingly dismissed. 20. However, considering the request of the learned counsel for the petitioner to grant four Crl.R.P No. 534 of 2023 18 months time to pay the compensation and in consideration of the fact that, the cheque is of the year 2011 and the amount of fine/compensation as Rs.9,00,000/-, I am inclined to grant three months time to the accused from today to pay the fine/compensation and to undergo the sentence. 21. Therefore, the revision petitioner/accused is directed to surrender before the trial court on 27.10.2023 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender, as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 26.10.2023. All other interim petitions stand dismissed. Registry is directed to forward a copy of this order to the trial court for information and compliance within seven days. Sd **/-** ## **A. BADHARUDEEN JUDGE** mtk Crl.R.P No. 534 of 2023 19 ## `APPENDIX OF CRL.REV.PET 534/2023` |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`FREE COPY OF THE AWARDED BY THE JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT, KOLENCHERRY IN S.T. NO. 2384/2011`| ||`DATED 17.11.2019.`| |`Annexure A2`|`TRUE COPY OF THE ECHOCARDIOGRAM REPORT ISSUED BY`| ||`COSMOPOLITAN HOSPITAL PVT.LTD THIRUVANANTHAPURAM`| ||`DATED 11.10.2021`| |`Annexure A3`|`THE TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY`| ||`COSMOPOLITAN HOSPITAL PVT.LTD THIRUVANANTHAPURAM`| ||`DATED 07.08.2019`| |`Annexure A4`|`THE TRUE COPY OF THE US SCAN ABDOMEN ISSUED BY TRIMS`| ||`DIAGNOSTIC SERVICES TRIVANDRUM DATED 22.06.2022`| |`Annexure A5`|`THE TRUE COPY OF THE ULTRASOUND STUDY OF WHOLE`| ||`ABDOMEN ISSUED BY ARAFA MEDICAL MISSION HOSPITAL`| ||`KADAKKAL KOLLAM DATED 10.02.2023`|