Michel Stephen v. Jaison and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944** **CRL.REV.PET NO.660 OF 2022** **AGGRIEVED BY JUDGMENT DATED 26.7.2022 IN CRIMINAL APPEAL NO.167/2019 OF SESSIONS COURT, THODUPUZHA WHICH AROSE FROM JUDGMENT DATED 18.11.2019 IN C.C.NO.47/2018 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS COURT, IDUKKI** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **MICHEL STEPHEN AGED 77 YEARS S/O JOHN STEPHEN, BONANZA HOUSE, KUREEPUZHA P.O., KOLLAM DISTRICT - 691601 BY ADV S.R.SREEJITH** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :** **1 JAISON, S/O PAULOSE, PALATTIL HOUSE, UPPUTHODU KARA, UPPUTHODU VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT, PIN - 685604 2 STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** **BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.09.2022, THE COURT ON 12.10.2022 DELIVERED THE FOLLOWING:** **CRL.R.P. NO.660 OF 2022** -:2:- **A.BADHARUDEEN, J. -------------------------------------------------------Crl.R.P.No.660 of 2022 -------------------------------------------------------Dated this the 12[th] day of October, 2022** ## **O R D E R** This is a Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure. The revision petitioner is the accused in C.C.No.47 of 2018 on the file of the Judicial First Class Magistrate Court, Idukki. The respondents herein are original complainant as well as State of Kerala. 2. As per judgment dated 18.11.2019, the revision petitioner was found guilty for commission of the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience) and he was sentenced to undergo simple **CRL.R.P. NO.660 OF 2022** -:3:- imprisonment for one year and to pay a fine of Rs.1,25,000/- (Rupees One lakh Twenty Five Thousand only). In default of payment of fine, the revision petitioner was directed to undergo simple imprisonment for six months. 3. When the above conviction and sentence were assailed before the appellate court in Crl.Appeal No.167 of 2019, the learned Sessions Judge also confirmed the conviction, while modifying the sentence. So, the concurrent finding of conviction is under challenge in this revision petition. 4. Heard the learned counsel for the revision petitioner/the accused on admission. The learned Public Prosecutor also was heard. 5. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. 6. Short facts of the case are as under: **CRL.R.P. NO.660 OF 2022** -:4:- The case put up by the complainant before the trial court was that the arrears of salary due to the complainant, while he was working at Michel Stephen General Maintenance Contracting LLC company at Ajmal in UAE during 2014 to 2017 under the accused, when sought to be discharged, the accused issued cheque for Rs.2,50,000/- towards salary arrears, on the assurance of encashment of the cheque. But when the cheque was presented for collection, the same was dishonoured for want of sufficient funds. Though legal notice intimating the dishonour and demanding the amount covered by the cheque was issued and accepted by the accused, he did not pay the amount. Accordingly, the complainant launched prosecution alleging commission of offence under Section 138 of the NI Act. 7. The trial court took cognizance of the matter and proceeded with trial. During trial, the complainant got **CRL.R.P. NO.660 OF 2022** -:5:- examined as PW1 and PW2 and Exts.P1 to P4 were marked. 8. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 9. Thereafter, the trial court, after appraising the evidence found that the transaction led to execution of Ext.P1 cheque, was proved by the complainant and accordingly, the complainant was entitled to get the benefit of presumptions under Sections 118 of 139 of the NI Act. 10. When the matter was taken before the appellate court, the appellate court also on re-appreciation of evidence found that the accused committed offence punishable under Section 138 of the NI Act. While confirming the conviction, the appellate court modified the sentence to the least minimum possible. **CRL.R.P. NO.660 OF 2022** -:6:- 11. The contention raised by the appellant before the courts below was that on 25.12.2016, a Christmas day, a complaint was with the accused through out the day and on that day, it was found that one among the cheque leaves was lost. It is relevant to note that no evidence forthcoming to see the said allegation. No records available in this matter to hold atleast that consequent on the loss of cheque, any proceedings initiated or atleast a complaint was lodged before the authorities concerned. 12. To the contrary, PW1 given evidence that Ext.P1 cheque was issued towards salary arrears due from the accused. The said evidence of PW1 corroborated by the evidence of PW2 was not shaken in any manner during cross-examination and therefore, the courts below rightly found that the accused herein committed offence punishable under Section 138 of the NI Act. 13. It is the settled law that power of revision **CRL.R.P. NO.660 OF 2022** -:7:- available to this Court under Section 401 of Cr.P.C r/w Section 397 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 (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 to the conclusion_ **CRL.R.P. NO.660 OF 2022** -:8:- _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 nonconsideration 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 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_ **CRL.R.P. NO.660 OF 2022** -:9:- _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 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 **CRL.R.P. NO.660 OF 2022** -:10:- 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. 16. Indubitably in a prosecution alleging commission of offence punishable under Section 138 of the NI Act, once the complainant discharges his initial burden, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act are available to the complainant. Law regarding presumptions is also settled as well. 17. 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_ **CRL.R.P. NO.660 OF 2022** -:11:- _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 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_ **CRL.R.P. NO.660 OF 2022** -:12:- _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.”_ 18. 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_ **CRL.R.P. NO.660 OF 2022** -:13:- _not in discharge of a debt or liability by adducing evidence.”_ 19. 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 Complainant-Respondent to explain the circumstances under_ **CRL.R.P. NO.660 OF 2022** -:14:- _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.”_ 20. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the **CRL.R.P. NO.660 OF 2022** -:15:- presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. 21. In the case on hand, no evidence adduced by the accused to prove that the cheque was lost by other means and also no evidence adduced to rebut the presumptions. In view of the matter, the conviction imposed by the trial court and confirmed by the appellate court does not require any interference. 22. Regarding the sentence, the appellate court imposed the least minimum possible sentence and therefore, the same also does not require any interference. 23. It is submitted by the learned counsel for the revision petitioner/the accused that five months time may be allowed to pay the compensation. It is noticed that the prosecution was initiated consequent on the dishonour of a cheque issued during 2017 and now five years period already lapsed. In such a case, five months time as such **CRL.R.P. NO.660 OF 2022** -:16:- cannot be granted. However, I am inclined to grant three months time more to the revision petitioner/the accused to pay the compensation. In the result, this Revision Petition stands dismissed. Considering the request of the revision petitioner/the accused, three months' time from today is granted to pay the compensation. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 11.01.2023 to undergo the modified sentence and to pay fine. In default to do so, the trial court is directed to execute the sentence as per law without fail. Till then, the execution of the sentence shall stand deferred. Sd/- ## **A. BADHARUDEEN JUDGE** rkj