M. Valsan @ Wilson v. State of Kerala and C. Latha

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **Crl.Rev.Pet.No.244 OF 2020** **AGAINST THE JUDGMENT IN CRA 278/2016 DATED 25-11-2017 OF ADDITIONAL SESSIONS COURT - IV, KOZHIKODE** **AGAINST THE JUDGMENT IN CC 579/2012 DATED 21-05-2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERAMBRA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **M.VALSAN @ WILSON, AGED 47 YEARS S/O RAMAN, RESIDING AT MADATHIL HOUSE, P.O.NANMINDA, KOZHIKODE-673 613.** **BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ SMT.V.SARITHA MRS.S.SREELAKSHMY SMT.RAJASREE R NAIR** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2 C.E.LATHA, AGED 49 YEARS W/O T.KRISHNAN, RESIDING AT KIZHAKKE THAROL HOUSE, P.O.KARIYATHANKAVU, BALUSSERY, KOZHIKODE673 612.** **R2 BY ADV. SRI.MANJERI SUNDERRAJ R2 BY ADV. SRI.A.SANOOJ** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.02.2020, THE COURT ON 02.03.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.244 OF 2020** **2** ## **R. NARAYANA PISHARADI, J ---------------------------------------------------Crl.R.P.No.244 of 2020 -----------------------------------------------------** Dated this the 2[nd] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C No. 579/2012 on the file of the Court of the Judicial First Class MagistrateII, Perambra. 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 and sentenced him to undergo simple imprisonment for a period of one year and also directed him to pay an amount of Rs.20,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of four months. 3. The petitioner filed Crl.A No. 278/2016 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner for the offence under Section 138 of the Act but modified the substantive sentence of imprisonment **Crl.Rev.Pet.No.244 OF 2020** **3** imposed on him by the trial court and reduced it to imprisonment till the rising of the court and maintained the direction to pay compensation to the complainant. 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard the learned counsel for the revision petitioner and also the the second respondent/complainant. 6. The case of the complainant is as follows: The complainant and the accused were known to each other. The accused had borrowed money from the complainant on various dates. A total amount of Rs.20,00,000/- was due from the accused to the complainant. In discharge of that liability, the accused executed and issued a cheque dated 04.04.2012 for Rs.20,00,000/- to the complainant. The complainant presented the cheque in the bank. It was returned unpaid 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 notice was served on the accused. He did not send any **Crl.Rev.Pet.No.244 OF 2020** **4** reply. The accused did not pay the amount of the cheque. 7. During the trial of the case, the complainant got herself examined as PW1 and two other witnesses were examined on her side as PW2 and PW3. Exts.P1 to P11 documents were also marked on her side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence regarding the details of the amounts borrowed by the accused from her, including the dates. She also gave evidence that, in discharge of the liability, the accused executed and issued Ext.P1 cheque for Rs.20,00,000/- to her. 9. PW1 gave evidence that the accused wrote and signed the cheque in front of her. The complainant examined PW2, who also gave evidence that the accused wrote the cheque and signed it in front of him and the complainant. 10. Execution of Ext.P1 cheque by the accused is proved by the evidence of PW1 and PW2. The accused also does not dispute or deny the signature in Ext.P1 cheque. 11. Once the 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 rebut the presumption. **Crl.Rev.Pet.No.244 OF 2020** **5** 12. The plea raised by the accused is that he had borrowed an amount of Rs.3,00,000/- from the husband of the accused and at that time, he had given a signed blank cheque as security and that the complainant has misused the aforesaid cheque and filed the case. 13. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out during the crossexamination of PW1 and PW2 to prove that the aforesaid plea is probable. 14. The complainant also adduced evidence to prove the source of money which was given by her to the accused. In this context it is to be noted that, her case is that, she gave the amount in instalments and not in lump. The complainant proved Exts.P6 to P11 documents to prove the source of money and her financial capacity. Ext.P6 certificate issued by the Kerala State Financial Enterprises Limited (KSFE) was produced to prove that the complainant had obtained an amount of Rs.8,03,200/- in a chitty transaction. Ext.P7 is the bank passbook of the complainant. It was produced to show that the amount received from the KSFE was deposited in the bank on 20.02.2010 and it was withdrawn on 25.02.2010. Ext.P8, the bank account statement of the husband of the complainant, was produced to show that he had withdrawn amounts from the bank. **Crl.Rev.Pet.No.244 OF 2020** **6** 15. There is primarily the evidence of the complainant to explain the circumstances under which she came into possession of the cheque, admittedly drawn on a cheque leaf issued to the accused by his bank to operate his account. No contra evidence has been adduced. On broad probabilities, there is no reason to doubt or suspect the statement on oath of the complainant. The fact that the accused has no reasonable and probable explanation as to how the cheque travelled from his possession to that of the complainant is certainly a crucial aspect while considering the acceptability of the evidence of the complainant. 16. It is trite that the complainant need not adduce evidence regarding the original transaction or original consideration as required in a suit for realisation of money (See **Uttam Ram v. Devinder Singh: (2019) 10 SCC 287** ). 17. It is also pertinent here to note that the accused has no case that he did not receive the statutory notice sent to him by the complainant. In fact, Ext.P5 document issued from the postal department shows that the notice was served on the accused. The accused did not send any reply to the statutory notice. If he had not obtained an amount of Rs.20,00,000/- from the complainant and if he had not executed and issued Ext.P1 cheque to the complainant in **Crl.Rev.Pet.No.244 OF 2020** **7** discharge of that liability, he would have definitely sent a reply to the notice. If he really did not owe the amount to the complainant, he would not have remained silent and inactive on receiving a lawyer notice from the complainant demanding an amount of Rs.20,00,000/from him and threatening legal action on default being committed by him in payment of the amount. The very fact that the accused did not send any reply to the statutory notice leads to the inference that the case of the complainant is true (See **Rangappa v. Mohan: AIR 2010 SC 1898** ). 18. In the aforesaid circumstances, I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered against the accused by the courts below. The courts below have appreciated the evidence in the correct perspective and come to the right conclusion. 19. It is true that the appellate court has made a comment that the accused did not step into the box to depose his version. Such comment was made by the appellate court ignoring the mandate under clause (b) of the proviso to Section 315 Cr.P.C. But, it does not mean that appreciation of the evidence by the appellate court and the conclusion reached by it are perverse. 20. The courts below have appreciated the evidence and made **Crl.Rev.Pet.No.244 OF 2020** **8** 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 offence under Section 138 of the Act is only to be confirmed. 21. The appellate court has shown maximum leniency to the petitioner/accused in awarding the sentence. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate court. 22. Consequently, the revision petition is dismissed. Conviction **Crl.Rev.Pet.No.244 OF 2020** **9** of the petitioner/accused by the trial court under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the appellate court is also confirmed. However, the petitioner/accused is granted a period of six months from today to pay the entire amount of compensation to the complainant and to satisfy the trial court regarding such payment. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn