Mathew M.T. v. State of Kerala and Thomas T.T.

**Crl.Rev.Pet.No.233 OF 2020** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** **Crl.Rev.Pet.No.233 OF 2020** **AGAINST THE JUDGMENT IN CRA 200/2018 DATED 19-12-2019 OF SESSIONS COURT,KOTTAYAM** **AGAINST THE ORDER IN ST 828/2011 DATED 13-11-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,PALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MATHEW M.T., AGED 48 YEARS S/O. THOMAS, MURINGOTHU HOUSE, (KIZHAKKEVELICKAKATHU), KIZHATHADIYOOR, LALAM VILLAGE, PALA, MEENACHIL TALUK, KOTTAYAM-686574.** **BY ADVS. SRI.MANU TOM SRI.BALU TOM SRI.K.R.JITHIN SRI.JERRY VARGHESE SHRI.BALAMURALI K.P.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **1 THOMAS T.T., AGED ABOUT 63 YEARS, S/O. THOMAS, THULUVALICKAL HOUSE, PAYAPPAR KARA, KAROOR P.O., PALA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM-686574.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20.02.2020, THE COURT ON 25.02.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.233 OF 2020** **2** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.233 of 2020** ## **--------------------------------------------** Dated this the 25[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T No.828/2011 on the file of the Court of the Judicial First Class Magistrate-I, Pala. 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. The trial court sentenced him to simple imprisonment for a period of six months and to pay a fine of Rs.4,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.A.No. 200/2018 before the Court of Session, Kottayam, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction of the petitioner under Section 138 of the **Crl.R.P.No.233 of 2020** **3** Act but modified the sentence imposed on him. The appellate court reduced the substantive sentence of imprisonment to imprisonment till the rising of the court and maintained the sentence of fine imposed on the petitioner by the trial court. 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. 6. The case of the complainant is as follows: The accused had borrowed an amount of Rs.3,00,000/- from the complainant on 12.03.2008. The accused had executed a promissory note in favour of the complainant for that amount to repay it on demand with 18% interest. The complainant sent a legal notice to the accused demanding payment of the amount. Then, the accused requested further time for repayment of the amount. Thereafter, on repeated demands made by the complainant, on 07.02.2011, the accused approached the complainant and settled the entire transaction for an amount of Rs.4,00,000/-. The accused issued a cheque dated 01.03.2011 for Rs.4,00,000/- in favour of the complainant in discharge of the aforesaid liability. The complainant presented the **Crl.R.P.No.233 of 2020** **4** 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 accused did not accept the notice and it was returned to the complainant as unclaimed. The accused 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 P8 documents were marked on his side. No oral evidence was adduced by the accused but Ext.D1 document was marked on his side. 8. When examined as PW1, the complainant gave evidence regarding the borrowing of the amount of Rs.3,00,000/- from him by the accused on 12.03.2008 on executing a promissory note. The complainant also gave evidence regarding the settlement of the transaction between him and the accused for an amount of Rs.4,00,000/- and the issuing of the cheque by the accused in discharge of the aforesaid liability. 9. The complainant gave evidence that the accused had brought Ext.P1 cheque filled up and that the accused signed the cheque in his presence. This evidence given by PW1 proves the execution of Ext.P1 cheque by the accused and delivery of it by him to **Crl.R.P.No.233 of 2020** **5** the complainant. 10. When 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. 11. The plea of the accused was that he had borrowed an amount of Rs.50,000/- from the complainant in the year 2005 and then he had given a signed blank cheque to the complainant as security. It is the further plea of the accused that he repaid the amount borrowed from the complainant but the complainant did not return the cheque and that he misused the cheque and filed the case. 12. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out in the cross-examination of PW1 to find that the plea of the accused is probable except the fact that the complainant is conducting money lending business. However, there is no evidence at all to find that the accused had borrowed Rs.50,000/- from the complainant in the year 2005 and at that time, he had given any signed blank cheque to the complainant. 13. Ext.P1 cheque was sent for expert opinion with regard to the handwriting of the entries therein. Ext.D1 report of the expert is that the person who wrote the standard writings did not write the entries in Ext.P1 cheque. It only means that the accused did not **Crl.R.P.No.233 of 2020** **6** himself fill up the cheque in his own handwriting. The complainant has no case that the accused had filled up the cheque in his own handwriting. The case of the complainant is that the accused brought the filled up cheque and that the accused signed the cheque in his presence. Therefore, Ext.D1 report of the expert does not in any way assist the accused to rebut the presumption under Section 139 of the Act. 14. It is true that the complainant did not produce before the court the promissory note alleged to have been executed by the accused at the time of borrowing the amount. The complainant need not prove the original transaction or original consideration as in a suit for realisation of money. The complainant need not prove the debt as in a suit for recovery of money (See **Uttam Ram v. Devinder Singh: (2019) 10 SCC 287** ). 15. It is pertinent here to note that there is no evidence to find that the plea of the accused that he had given a signed blank cheque to the complainant is probable. In such circumstances, non-production of the documents relating to the original transaction by the complainant is of no significance. 16. The trial court as well as the appellate court has appreciated the evidence in the correct perspective and come to the **Crl.R.P.No.233 of 2020** **7** right conclusion. I find no perversity, illegality or impropriety in the appreciation of evidence by the courts below and the concurrent findings entered against the petitioner. 17. 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 of the Act is only to be confirmed. **Crl.R.P.No.233 of 2020** **8** 18. The appellate court has shown maximum leniency in awarding the sentence on the petitioner/accused. The sentence imposed on the petitioner/accused also does not call for any interference by this Court. 19. Consequently, the revision petition is dismissed. Conviction of the petitioner/accused for the offence under Section 138 of the Act by the trial court, 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 four months from today to remit the fine amount in the trial court. ## **Sd/-R. NARAYANA PISHARADI JUDGE** lsn