Mercy Joseph v. Noushad P. A. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **Crl.Rev.Pet.No.239 OF 2020** **AGAINST THE JUDGMENT IN CRA 181/2019 DATED 27-01-2020 OF THE SESSIONS COURT, ALAPPUZHA** **AGAINST THE JUDGMENT IN ST 16/2016 DATED 31-08-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV,CHERTHALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MERCY JOSEPH AGED 62 YEARS W/O. K. A. JOSEPH, CC 17/2263 (OLD NO.CC 21/137), KOLOTHUMVEETIL, PALLURUTHY P. O., PERUMPADAPPU, KOCHI - 682 006.** **BY ADV. SMT.P.SAREENA GEORGE** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 NOUSHAD P. A. S/O. ABDUL KARIM, PARAYIL HOUSE, EZHUPUNNA SOUTH P. O., 688 535.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## R1 **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.02.2020, THE COURT ON 26.02.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.239 OF 2020** **2** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P.No.239 of 2020** ## **--------------------------------------------** Dated this the 26[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T No. 16/2016 on the file of the Court of the Judicial First Class MagistrateIV, Cherthala. 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 to pay a fine of Rs.4,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. 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.181/2019 before the Court of Session, Alappuzha 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 against the petitioner and **Crl.Rev.Pet.No.239 OF 2020** **3** dismissed the appeal. 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 and the accused were closely acquainted with each other. On 09.06.2013, the accused borrowed an amount of Rs.4,00,000/- from the complainant. In discharge of that liability, the accused issued a cheque dated 13.08.2013 for Rs.4,00,000/- in favour of the complainant. The complainant presented the cheque in the bank. It was dishonoured 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 returned to the complainant as unclaimed by the accused. 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 P6 documents were marked on his side. Another witness was examined on his side as PW2. DW1 was examined on the side of the accused. **Crl.Rev.Pet.No.239 OF 2020** **4** 8. When examined as PW1, the complainant gave evidence that the accused borrowed an amount of Rs.4,00,000/- from him on 09.06.2013. He also gave evidence that, in discharge of the aforesaid liability, the accused issued Ext.P1 cheque for Rs.4,00,000/- to him. He stated that the accused brought the cheque with all the entries made therein and that the accused signed the cheque in his presence. 9. The accused did not dispute the fact that Ext.P1 cheque bears her signature. Therefore, the evidence of PW1 proves that the accused executed Ext.P1 cheque and she delivered the cheque to him. 10. 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. 11. The plea of the accused was that she had borrowed an amount of Rs.1,00,000/- from the complainant in the month of February, 2009 and that she had agreed to pay interest at the rate of Rs.6,000/-. It is the further plea of the accused that, she repaid the entire amount to the complainant in instalments and that she got an acknowledgement from the complainant regarding the repayment of the amount of Rs.1,00,000/-. It is the further plea of the accused that she had given two signed blank cheques to the complainant at the **Crl.Rev.Pet.No.239 OF 2020** **5** time of borrowing the amount of Rs.1,00,000/- and inspite of repayment of the amount, the complainant did not return the cheques and that he misused one of the cheques and filed the complaint. 12. In order to prove her plea, the accused examined her daughter as DW1. DW1 gave evidence in tune with the plea raised by the accused. However, it was brought out in her evidence that she has got no direct knowledge regarding the transactions between her mother and the complainant, except repayment of an amount of Rs.40,000/- by her to the complainant. DW1 also gave evidence that she has got no direct knowledge regarding the issuance of cheque by the accused to the complainant. In such circumstances, the trial court rightly found that the evidence of DW1 has no probative value and it does not enable the accused to rebut the presumption under Section 139 of the Act. 13. Nothing was also brought out in the cross-examination of PW1 to prove that the plea of the accused is probable. 14. If the accused had obtained acknowledgement from the complainant regarding repayment of the amount of Rs.1,00,000/-, she could and should have produced that document before the trial court and proved it. She did not take any steps to prove any such document either before the trial court or before the appellate court. 15. In the **Crl.Rev.Pet.No.239 OF 2020** **6** revision petition, the petitioner/accused has filed an application as Crl.M.A No.2/2020 to accept in evidence certain documents. These documents are photocopies of the bank account statements and the receipts alleged to have been issued by the complainant. The receipts produced by the accused before this Court are not original. Moreover, the accused has not offered any satisfactory and convincing explanation as to why these documents could not be produced by her before the trial court or atleast before the appellate court. In such circumstances, the application filed by her for receiving the documents in evidence at the revisional stage cannot be accepted. 16. Moreover, even if it is assumed and accepted that there was a previous transaction between the accused and the complainant involving Rs.1,00,000/-, there is no reliable evidence to show that Ext.P1 cheque was issued by the accused to the complainant as a security at the time of such previous transaction. 17. A plea was raised by the accused before the court below that the statutory notice sent by the complainant was not served on her. The notice was sent by the complainant to the accused by registered post. During the cross-examination, the daughter of the complainant, who was examined as DW1, admitted that the address shown on Ext.P6 cover containing the notice is the correct address of **Crl.Rev.Pet.No.239 OF 2020** **7** the accused. Since the complainant had sent the notice to the accused in the correct address by registered post, service of notice on the accused has to be presumed under Section 27 of the General Clauses Act. 18. The trial court as well as the appellate court has appreciated the evidence adduced in the case in the correct perspective and come to the right conclusion. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered by the courts below. 19. 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 **Crl.Rev.Pet.No.239 OF 2020** **8** 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. 20. The trial court has shown maximum leniency in imposing sentence on the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused. 21. 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 four months from today to remit the fine amount in the trial court. Crl.M.Appl.Nos.01/2020 to 03/2020 stand dismissed/closed. ## **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.Rev.Pet.No.239 OF 2020** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A1** **A TRUE COPY OF RECORD SLIP OF CHEQUE BOOK OF FEDERAL BANK LTD., PALLURUTHY BRANCH POSSESSED BY THE ACCUSED.** - **ANNEXURE A2 A TRUE COPY OF BANK STATEMENT ISSUED BY DHANALAXMI BANK LTD., PALLURUTHY TO THE REVISION PETITIONER.** - **ANNEXURE A3 TRUE COPIES OF BANK STATEMENT ISSUED BY ORIENTAL BANK OF COMMERCE, KOCHI PANAYAPALLY BRANCH TO THE REVISION PETITIONER.** - **ANNEXURE A4 TRUE COPY OF ACKNOWLEDGEMENT DATED 4.5.2013 SIGNED BY THE COMPLAINANT.** - **ANNEXURE A5 TRUE COPY OF RELEVANT PAGE OF NOTEBOOK MAINTAINED BY THE ACCUSED NOTING TRANSACTIONS WITH THE ACCUSED.** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** ## **LSN**