Makkar C.M. v. State of Kerala

# **`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. 727 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 225/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT, MUVATTUPUZHA ``` ``` ST 1724/2019 OF JUDICIAL FIRST CLASS MAGISTRATE-I, MUVATTUPUZHA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` MAKKAR C.M. AGED 58 YEARS CHITTETHUKUDIYIL HOUSE, S/O.MYTHEEN, NEAR GOVT. U.P. SCHOOL, PANIPRA, VADASSERY, KOTTAPADY P.O., KOTHAMANGALAM TALUK, ERNAKULAM, PIN - 686692 BY ADVS. SANJAY THAMPI A.A.SHIBI GAYATHRI A.L. ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682018`** ``` 2ABDULKAREEM AGED 39 YEARS, S/O. KUNJUMON, VAIKKANAKKUDY HOUSE, PEZHAKKAPPILLY P.O., MUVATTUPUZHA, PIN - 686673 SRI.G.SUDHEER, PUBLIC PROSECUTOR ``` ## **`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.727 OF 2022 ``` ``` 2 ``` ## **O R D E R** Dated this the 22[nd] day of November, 2022 This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for convenience), challenging conviction and sentence imposed against the revision petitioner as per judgment dated 04.07.2019, who is the accused in S.T.No.1724/2019 on the file of the Judicial First Class Magistrate-I, Muvattupuzha, confirmed by the Additional District and Sessions Judge-I, Muvattupuzha as per judgment in Crl.Appeal No.225 of 2019 dated 06.04.2022. 2. The respondents in this revision petition are State of Kerala represented by Public Prosecutor as well as the original complainant before the trial court. ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 3 ``` 3. Heard the learned counsel for the revision petitioner on admission. Notice to the complainant stands dispensed with. 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. The brief facts of the case put up by the complainant before the trial court are as under: The accused issued cheques for Rs.1,00,000/- dated 10.08.2011 and Rs.50,000/- dated 20.11.2011 in discharge of his liability towards the complainant and when the cheques were presented for collection, the same got returned unpaid for want of funds. Thereafter, the complainant lodged prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short), when the accused failed to make the payment even on receipt of demand notice. ## **`CRL.REV.PET NO.727 OF 2022`** ## **`4`** 6. The complaint was initially filed in the year 2012. Since the accused absconded, the matter was moved to Long Pending Register and kept as L.P.No.65/16. It was thereafter, during 2019, after a long period of seven years, the revision petitioner conceded the jurisdiction of the trial court and the case was re-numbered as S.T.1724/2019. Then, the learned Magistrate recorded evidence. The evidence is confined to that of PW1 and Exts.P1 to P7. 7. The learned Magistrate believed the evidence of PW1 to hold that Ext.P1 cheque issued for Rs.1,00,000/was proved and thereby the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1. 8. The case put up by the revision petitioner/accused before the trial court was that the accused had no prior acquaintance with the complainant and he had issued the above two cheques to one ‘Salim of ## **`CRL.REV.PET NO.727 OF 2022`** ## **`5`** Pezhakkappily’ towards security for the repayment of loan obtained from him. In fact, no evidence let in to prove the said contention. 9. It is submitted by the learned counsel for the revision petitioner that after closing the evidence, the revision petitioner filed CMP 652/2019 under Section 311 of Cr.P.C. to re-open the evidence and to recall PW1 for further cross-examination. But the said petition was dismissed. He admitted that no challenge raised insofar as the said dismissal. 10. As things stands now, the trial court as well as the appellate court given reliance on the evidence of PW1 to hold that the complainant discharged his initial burden and thereby twin presumptions under Section 118 and 113 of the NI Act was given in favour of the complainant. 11. In this matter, the trial court found that the accused committed offence punishable under Section 138 of ## **`CRL.REV.PET NO.727 OF 2022`** ## **`6`** NI Act and he was sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the complainant and the fine was ordered to be given as compensation to the complainant. In default of payment of compensation, imprisonment for a period of one month also was ordered. The accused challenged the order of trial court before the Additional District and Sessions Judge, Muvattupuzha in Crl.A.No.225/2019. As per judgment dated 06.04.2022, the learned Sessions Judge also concurred the said finding. 12. Going by the grounds raised in the revision petition, in fact, those are matters to be decided on appreciation of evidence and the said power is not available to this Court while exercising revision. 13. 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 ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 7 ``` 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 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_ ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 8 ``` _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. …”_ 14. 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 or the view taken by the court is wholly unreasonable or there is non-consideration 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_ ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 9 ``` _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.”_ 15. 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 ## **`CRL.REV.PET NO.727 OF 2022`** ## **`10`** 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 or fundamental violation of the principle of law, then only the power of revision would be made available. 16. As I have already pointed out, the trial court as well as the appellate Court negatived the contention and believed the version of PW1 and Exts.P1 to P7, to hold that the complainant discharged the initial burden in the matter of transaction led to execution of Ext.P1 cheque and thereby, the benefit of presumptions under Sections 118 and 139 of the NI Act was given to the complainant. Accordingly, the accused convicted and sentenced 17. It is settled law that once the complainant discharged his initial burden in the matter of transaction led ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 11 ``` to execution of cheque, the complainant would get benefit of twin presumptions under Section 118 and 139 of the N.I.Act. The law is settled on this point. 18. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. 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 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_ ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 12 ``` _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.727 OF 2022`** ## **`13`** 19. 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_ ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 14 ``` ## _adducing evidence.”_ 20. 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**_ 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_ ``` CRL.REV.PET NO.727 OF 2022 ``` ``` 15 ``` _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 debt.”_ ## 21. The learned counsel for the revision petitioner sought modification of sentence to one for a day till rising of ## **`CRL.REV.PET NO.727 OF 2022`** ## **`16`** court and payment of compensation. Further he submitted that three months time may be granted to pay the compensation. 22. On going through the available materials, nothing on record to revisit the concurrent verdict of conviction. However, it appears that the sentence requires modification. Accordingly, the sentence is modified. In the result, the revision petition allowed in part. Conviction imposed by the trial court as well as the appellate court stand confirmed. The revision petitioner/accused shall undergo simple imprisonment for a day till rising of the court for the offence under Section 138 of the NI Act and also to pay fine of Rs.1,50,000/- (Rupees one lakh fifty thousand only). In default of payment of fine, the revision petitioner shall undergo default imprisonment for a period of four months. Fine shall be given to the complainant as compensation ## **`CRL.REV.PET NO.727 OF 2022`** ## **`17`** under Section 357(1)(b) of Cr.P.C. Considering the request of the accused/revision petitioner, and the transaction is of the year 2011 and the amount involved is only Rs.1,50,000/-, I am inclined to grant one month time from today to pay the amount. Therefore, the accused/revision petitioner is directed to surrender before the on 21.12.2022 to pay the compensation and to undergo the sentence. The execution of sentence shall stand deferred till 20.12.2022. On failure to do so, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the court below concerned, within two weeks, for information and compliance. ## **Sd/-** ## **A. BADHARUDEEN** ## **JUDGE** nkr