Mambiyil Ashraf v. Pulikkal Sundaran and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 CRL.REV.PET NO. 709 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CRL.A.NO. 209 OF 2019 OF THE COURT OF SESSION, KOZHIKODE IN ST 414/2018 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I. ACT CASES), KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MAMBIYIL ASHRAF AGED 49 YEARS, S/O.BEERAN KUTTY, MAMBIYIL HOUSE, MANNUR P.O., KOZHIKODE DISTRICT, PIN-673 328 BY ADVS. E.G.GORDEN V.M.MARY HARSHA S.K.KRISHNAKUMAR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **1 PULIKKAL SUNDARAN AGED 52 YEARS, S/O. KUTTIPERAVAN, PAREEKATTIL HOUSE, NALLOOR, UDAYAMANGALAM, FEROKE.P.O., KOZHIKODE DISTRICT, PIN-673 631 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 031** **PP-SRI.G.SUDHEER** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No. 709 of 2021 2 ## **ORDER** ## **Dated this the 30th day of November, 2022** 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 sole accused in S.T.No.414/2018 on the file of the Special Judicial First Class Magistrate Court (N.I. Act Cases), Kozhikode dated 12.04.2019 and the appellant in Crl.A.No.209/2019 of Court of Session, Kozhikode dated 24.08.2021. The respondents herein are the original complainant as well as State of Kerala. 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 1[st] respondent stands dispensed with. 4. Short facts of the case are: the complainant herein launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Crl.R.P No. 709 of 2021 3 Instruments Act (hereinafter referred as N.I.Act for convenience), when a cheque for Rs.1,80,000/- dated 15.10.2017 alleged to be issued by the accused to the complainant, to discharge liability for the said sum, was dishonored for want of funds. 5. The trial court secured the presence of the accused for trial and tried the matter. During trial, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. DW1 examined and Exts.D1 to D2 series were marked on the side of the defence. 6. The Court below considered the evidence and finally ordered to pay a fine of Rs.1,80,000/- as compensation to the complainant and in default of payment of fine, the accused to undergo simple imprisonment for a period of two months. 7. When the accused challenged the judgment of the trial court before the Sessions Court, Kozhikode vide Crl.A.No.209/2019, the learned Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence imposed by the trial court. Crl.R.P No. 709 of 2021 4 8. The learned counsel for the accused/revision petitioner would submit that, during the year 2015, the accused borrowed a sum of Rs.1,80,000/- from the complainant and issued Ext.P2 cheque towards security. Thereafter, the accused discharged the said liability by paying the said sum by installments as born out from Exts.D1 and D2 series receipts proved through DW1, Bank Manager of Co-operative Urban Bank Ltd, Feroke. 9. According to the learned counsel for the petitioner, Ext.P2 cheque lacks consideration. His further submission is that, the due execution of the cheque not properly proved and the probability in this matter is in favour of the accused, to hold Ext.P2 cheque was one issued for the transaction of the year 2014. 10. This contention has been raised before the trial court as well as the Appellate Court. It is relevant to note that, even though the accused raised plea of discharge with reference to a previous transaction during 2014, he did not adduce any evidence in this regard and he himself was not inclined to be on the box to depose the said case. Crl.R.P No. 709 of 2021 5 It is true that, as per the evidence of DW1 supported by Exts.D1 and D2 series some amounts were deposited by the accused in the name of the complainant. During cross-examination of PW1, the complainant admitted that, there were previous transactions between them. If so, the best evidence that would have been adduced by the accused to prove the defence case, now put up, shall be by examining the accused himself and other witnesses competent to depose and prove the said contention. 11. Here, the complainant raised contention that, Ext.P2 cheque was issued for the amount received during 2017 excluding the period covered by Exts.D1 and D2 series. The complainant given evidence in support of the said contention and during cross-examination nothing extracted to disbelieve his version so as to deny him the benefit of twin presumptions under Section 139 of the N.I. Act. 12. 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, Crl.R.P No. 709 of 2021 6 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 bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private_ Crl.R.P No. 709 of 2021 7 _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.”_ 13. 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 Crl.R.P No. 709 of 2021 8 ## 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.”_ 14. 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], _**M/s.Kalamani Tex & anr. v. P.Balasubramanian**_ the Crl.R.P No. 709 of 2021 9 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._ _…................_ _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_ Crl.R.P No. 709 of 2021 10 _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.”_ 15. In fact, the contention raised by the learned counsel for the revision petitioner are matters of evidence and for which this Court shall have to re-appreciate the evidence. But the power of revision available to this Court is not exhaustive to do so. 16. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of 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 Crl.R.P No. 709 of 2021 11 (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 scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come_ Crl.R.P No. 709 of 2021 12 _to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”_ 17. 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 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_ Crl.R.P No. 709 of 2021 13 _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.”_ 18. 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 Crl.R.P No. 709 of 2021 14 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 of law, then only the power of revision would be made available. 19. Therefore, this revision petition is found to be not sustainable for any reason. Accordingly, this revision petition must fail. In the result, this revision petition is dismissed. 20. Faced with the situation, the learned counsel for the petitioner sought for six months time. Considering the fact that, the cheque is of the year 2017 and the amount as Rs.1,80,000/-, I am inclined to grant two months time to the accused from today to pay the fine and to undergo the sentence. 21. Therefore the revision petitioner/accused is directed to surrender before the trial court on 31.01.2023 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender as directed, Crl.R.P No. 709 of 2021 15 the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 30.01.2023. 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** SK