Mary K.V. v. Sidharthan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** ## **Crl.Rev.Pet.No.316 OF 2020** **AGAINST THE JUDGMENT IN CRA 40/2016 DATED 08-01-2020 OF ADDITIONAL SESSIONS COURT - II, KALPETTA** **AGAINST THE JUDGMENT IN ST 750/2013 DATED 11-04-2016 ON THE FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,SULTHANBATHERY** ## **PETITIONER/APPELLANT/ACCUSED:** **MARY K.V. AGED 54 YEARS W/O. NARAYANAN, KALLUNGAL, POOLAKKARA HOUSE, CHEERAL P.O. SULTHAN BATHERY, WAYANAD DISTRICT.** **BY ADVS. SRI.TONY THOMAS (INCHIPARAMBIL) SRI.P.THOMAS GEEVERGHESE** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 SIDHARTHAN AGED 55 YEARS, S/O. RAMAN, PAVOOTTIYIL HOUSE, PUTTADU, NATHANKUNI, THOMATTUCHAL, SULTHAN BATHERY TALUK, WAYANAD DISTRICT 673 593.** **2 STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGHS COURT OF KERALA, ERNAKULAM 680 031.** ## **R2 SRI.RAMESH CHAND, PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.03.2020, THE COURT ON 16.03.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.316 OF 2020** **2** ## **R. NARAYANA PISHARADI, J** ## **---------------------------------------------------Crl.R.P.No.316 of 2020** **-----------------------------------------------------** Dated this the 16[th] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T. No. 750/2013 on the file of the Court of the Judicial First Class MagistrateI, Sulthan Bathery. 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 her thereunder. The trial court sentenced her to imprisonment till the rising of the court and also directed her to pay an amount of Rs.8,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of two months. 3. The petitioner filed Crl.A. No. 40/2016 before the Court of Session, Wayanad challenging the order of conviction and sentence passed against her by the trial court. The appellate court confirmed the conviction as well as the sentence and dismissed the appeal. **Crl.Rev.Pet.No.316 OF 2020** **3** 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against her by the courts below, the accused has filed this revision petition. 5. Heard the learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant had availed a loan from the bank for cultivation of ginger in Karnataka. He had saved the income earned from the ginger cultivation for repayment of the loan amount. The accused came to know about the amount in the hands of the complainant. She approached the complainant along with a friend of the complainant by name Jayamani and made him to believe that if he deposited Rs.8,00,000/- in the Market Plus scheme of the Life Insurance Corporation of India, he would get Rs.24,00,000/- after five years. Accordingly, the accused received Rs.8,00,000/- from the complainant. However, the accused did not deposit the amount in the aforesaid scheme and she misappropriated the amount. When the complainant demanded the accused to repay the amount, she issued a cheque dated 18.12.2012 for Rs.8,00,000/- to him in discharge of the liability. 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 notice to the accused demanding **Crl.Rev.Pet.No.316 OF 2020** **4** payment of the amount of the cheque. The accused received the notice. She did not send any reply. She did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 was examined on the side of the accused and Ext.D1 document was marked on her side. Ext.C1 document was marked as court exhibit. 8. When examined as PW1, the complainant gave evidence in tune with the averments in the complaint. He gave evidence that the accused had received an amount of Rs.8,00,000/- from him on the promise that the amount would be deposited in the LIC Market Plus scheme and that she would give the receipt of the investment on the next day. 9. The accused does not dispute the fact that Ext.P1 is a cheque drawn on a cheque leaf issued to her from her bank to operate her account. She also does not dispute the fact that Ext.P1 cheque bears her signature. 10. The plea of the accused was that she had borrowed Rs.7,00,000/- from one Saji Antony on executing an agreement on **Crl.Rev.Pet.No.316 OF 2020** **5** 17.07.2012 and at that time, she had given thirteen signed blank cheques to Saji Antony. It was her further plea that the complainant and five other persons obtained the aforesaid cheques from Saji Antony and Ext.P1 is one of the aforesaid cheques. The accused raised a further plea that the entries in the cheque are not in her handwriting and she had not issued the cheque in favour of the complainant. 11. DW1 was examined and Ext.D1 document was marked by the accused in an attempt to prove her plea. The accused had given a complaint to the police against Saji Antony and the complainant and other persons regarding misuse of the cheques allegedly given by her to Saji Antony. Ext.D1 is the copy of the first information report registered on the basis of that complaint. DW1 was the Sub Inspector of Sulthan Bathery police station, who registered Ext.D1 first information report on the basis of the complaint given by the accused. 12. The allegations in Ext.D1 first information report were that the accused had given thirteen blank cheques to Saji Anotny and borrowed Rs.7,00,000/- from him and an agreement was executed on 17.07.2012 and thereafter, the complainant and five other persons obtained the cheques from Saji Antony and misused the cheques and they cheated the accused. **Crl.Rev.Pet.No.316 OF 2020** **6** 13. The evidence of DW1 and Ext.D1 first information report do not enable the accused to prove her plea. In the first place, Ext.D1 first information report was registered in the year 2014 (Crime No. 232/2014), long after the dishonour of Ext.P1 cheque and the filing of the complaint in the present case by the complainant. Therefore, whatever allegations raised in Ext.D1 cannot be given much weight. In the second place, as rightly observed by the trial court, any person can raise any allegation against another person and make a complaint to the police regarding commission of cognizable offences and get a first information report registered. It does not mean that the allegations raised in such first information report are true. The accused has no case that, after conducting the investigation in the case, any chargesheet was filed against the complainant and Saji Antony and other persons for any offence and those persons were tried or convicted by the competent court. 14. As notice earlier, the accused had raised a plea that the entries in Ext.P1 cheque were not in her handwriting. In order to prove this plea, at her instance, the cheque was sent for the opinion of the handwriting expert in the Forensic Science Laboratory. Ext.C1 is the report of the expert. The opinion of the expert is that the person who wrote the admitted writings has most probably written the disputed **Crl.Rev.Pet.No.316 OF 2020** **7** writings in Ext.P1 cheque. Since the report of the handwriting expert was not in her favour, the accused did not choose to examine the expert. 15. In the aforesaid circumstances, the evidence of PW1 is sufficient to prove that the accused executed Ext.P1 cheque and he gave the cheque to him. 16. 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. As stated earlier, the evidence of DW1 and Ext.D1 document do not enable her to prove her plea. Nothing was also brought out in the cross-examination of PW1 which would enable the accused to rebut the presumption under Section 139 of the Act. 17. Financial capacity of the complainant to lend an amount of Rs.8,00,000/- was challenged by the accused. When the accused did not raise any probable plea and the evidence adduced by her did not prove her plea with regard to the possession of her cheque by the complainant, he had no obligation to prove the original transaction or to prove his financial capacity to lend the amount. Even if it is accepted that he had the obligation to prove his financial capacity or **Crl.Rev.Pet.No.316 OF 2020** **8** source of the funds, there is evidence of PW1 that he had saved the income obtained from ginger cultivation for repayment of the loan and he gave the amount to the accused. When a person is lured by a promise that an amount of Rs.8,00,000/- would become Rs.24,00,000/- within a period of five years, it is not improbable that he would part with the money. Greed for money would prompt people to take such risks. 18. There is a crucial circumstance against the accused. The complainant had sent the statutory notice to the accused. Though the accused denied receipt of the notice, she did not deny the signature in the postal acknowledgment card. Evidently, she had received the notice issued to her by the complainant demanding repayment of the amount of Rs.8,00,000/- . She did not send any reply to the statutory notice. If she had not actually received Rs.8,00,000/- from the complainant and if she had not actually issued Ext.P1 cheque for Rs.8,00,000/- to the complainant in discharge of such liability, she would not have remained silent and inactive on receiving the notice from the complainant demanding such a huge amount and threatening legal action in case of non-payment of such amount. The very fact that the accused did not send any reply to the statutory notice leads to an inference that the case of the complainant is true. **Crl.Rev.Pet.No.316 OF 2020** **9** 19. The trial court as well as the appellate court has appreciated the evidence in the correct perspective and come to the right conclusion. I find no illegality, impropriety or perversity in the appreciation of evidence or the concurrent findings entered against the petitioner by the courts below. 20. The courts below have appreciated the evidence and made 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 **Crl.Rev.Pet.No.316 OF 2020** **10** of the Act is only to be confirmed. 21. The trial court has shown maximum leniency in awarding sentence on the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on her by the courts below. 22. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. However, the petitioner/accused is granted a period of eight months from today to pay the amount of compensation to the complainant and to satisfy the trial court regarding payment of the amount by her. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn