Moosa s/o Yahu v. Manappuram General Finance and Leasing Limited and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 CRL.REV.PET NO. 313 OF 2016 AGAINST THE ORDER/JUDGMENT IN CRL.A 515/2012 OF III ADDITIONAL DISTRICT COURT, THRISSUR/ II ADDITIONAL MACT, THRISSUR ST NO.2501/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, THRISSUR** ## **REVISION PETITIONER/ APPELLANT/ ACCUSED:** MOOSA S/O.YAHU, POOZHIKUNNATH HOUSE, RANDATHANI P.O., TIRUR, MALAPPURAM DISTRICT. BY ADV SRI.P.M.RAFIQ ## **RESPONDENTS/ RESPONDENTS/ COMPLAINANT AND STATE:** 1 MANAPPURAM GENERAL FINANCE AND LEASING LIMITED MANAPPURAM HOUSE, VALAPPAD POST, THRISSUR DISTRICT, REPRESENTED BY A.V.UNNIKRISHNAN, SENIOR ASSISTANT (LEGAL). 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI.SABU S.KALLARAMOOLA SMT S REKHA SR PP **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.R.P. No.313 of 2016** 2 ## **O R D E R** Dated this the 19th day of July, 2023 The accused in a criminal prosecution under Section 138 of the Negotiable Instruments Act (for short, 'the N.I.Act') is the revision petitioner. 2. The son of the revision petitioner availed a hire purchase loan from the respondent No.1 herein which is a Public Limited Company engaged in the hire purchase business. The revision petitioner stood as surety to the said transaction. According to the respondent No.1, the son of the revision petitioner defaulted the repayment of the loan and there was a due of Rs.50,805/-. When they requested the revision petitioner and his son to settle the dues, the revision petitioner issued Ext.P5 cheque to the respondent No.1 which on presentation was returned as dishonored with the endorsement 'payment stopped by the drawer'. After issuing Ext.P8 statutory notice under Section 138(b) of the N.I.Act, the prosecution was lodged at the Judicial First Class Magistrate Court -III, Thrissur (for short, 'the trial court'). The trial court after trial found the revision petitioner guilty, convicted and **CRL.R.P. No.313 of 2016** 3 sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.77,000/-, in default to suffer simple imprisonment for three months. The revision petitioner unsuccessfully challenged the judgment of the trial court before the III Additional Sessions Court, Thrissur (for short, 'the appellate court'). It is challenging the judgment of the trial court as well as the appellate court, this revision petition has been preferred by the revision petitioner. 3. I have heard Sri.P.M.Rafiq, the learned counsel for the revision petitioner and Sri.Sabu S. Kallaramoola, the learned counsel for the respondent No.1. 4. The respondent No.1 is a financing company. The authorized representative of the respondent No.1 was examined as PW1. Exhibits P1 to P10 were marked on the side of the prosecution. PW1 gave evidence in tune with the allegations in the complaint. He deposed that the revision petitioner stood as surety for the hire purchase loan availed by his father and towards the loan amount due, Ext.P5 cheque was issued. The revision petitioner contended that in fact the respondent No.1 collected a **CRL.R.P. No.313 of 2016** 4 signed blank cheque from him at the time of execution of the hire purchase agreement and the said blank cheque was misused and a false complaint was filed. The revision petitioner has also taken a contention that the respondent No.1 re-possessed and sold the vehicle and hence they cannot initiate prosecution on the basis of Ext.P5 cheque. 5. The N.I.Act raises two presumptions, firstly in regard to the passing of consideration as contained in Section 118 therein and secondly, the presumption that the holder of a cheque received the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing a presumption under Section 139 of the N.I.Act exists, the court shall draw a presumption under the said Section, in which case the evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not would depend upon the facts and circumstances of each case. As stated already, PW1 gave evidence that the cheque in question was issued by the revision petitioner towards the discharge of the loan **CRL.R.P. No.313 of 2016** 5 liability. Both courts below found that the evidence tendered by PW1 is sufficient to prove the execution of the cheque. The defence case is that, the cheque in question was issued in blank as a security by the revision petitioner at the time of executing the hire purchase agreement. When a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment, it would attract presumption under Section 139 of the N.I.Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (See _**Bir Singh v. Mukesh Kumar**_ [2019 (1) KHC 774]). So far as the second contention is concerned, it is true that the respondent No.1 re-possessed the vehicle and sold it. But the evidence on record would show that after repossessing the vehicle, the notice was issued for the balance amount and in response of the said notice, the revision petitioner as the surety of the borrower appeared before the respondent No.1 and issued Ext.P1 cheque towards the final settlement. 6. It is settled that the revisional jurisdiction under Sections 397 and 401 of Cr.PC is to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction, in **CRL.R.P. No.313 of 2016** 6 order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the apex court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. While exercising the revisional powers under Sections 397 r/w 401 of Cr.PC, the court is required to find out if there is any illegality or impropriety in the finding of the trial court and the appellate court warranting interference and it is not open to the High Court to exercise the revisional power as the second appellate forum (See _**State Of Maharashtra vs Jagmohan Singh Kuldip Singh Anand and others**_ [2004 (7) SCC 659]). 7. Since there are concurrent findings of the two courts below, this Court would be circumspect in invoking the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure. It is only if the decisions rendered by the courts below can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. I have carefully gone through the entire records, evidence, proceedings and the judgments of both the **CRL.R.P. No.313 of 2016** 7 courts below. Both the courts below concurrently found that the cheque in question was issued towards the legally enforceable debt and execution of it has been satisfactorily proved. I find no impropriety or illegality in the judgments of the court below warranting interference under the exercise of revisional powers vested with the courts. Thus the judgment of conviction rendered by both the court below does not warrant any interference. 8. The learned counsel for the revision petitioner submitted that the cheque in question was issued as part of the business transaction and hence the substantive sentence of imprisonment passed by the courts below is not proportionate to the offence allegedly committed by the revision petitioner. The amount due is Rs.50,805/-. The courts below have imposed a fine of Rs.77,000/-. Considering the entire facts and circumstances of the case, I am of the view that the substantive sentence of imprisonment imposed by the courts below can be reduced to till rising of the court. Thus, the substantive sentence of imprisonment imposed by the courts below is reduced to till rising of the court. 9. The revision petitioner shall appear before the trial court **CRL.R.P. No.313 of 2016** 8 within two months from today to suffer the imprisonment till rising of the court. On that day, he shall deposit the fine amount of Rs.77,000/- also. In default of payment of fine amount, the revision petitioner shall suffer simple imprisonment for a period of three months. On deposit of the fine amount, the trial court shall pay the same to the complainant as compensation under 357(1)(b) of Cr.P.C. The revision petitioner shall give prior notice to the respondent No.1 or its counsel before appearing at the trial court. If the revision petitioner fails to appear at the trial court within two months from today, the trial court is directed to initiate coercive steps against the revision petitioner after the expiry of the two months. The revision petition is allowed in part as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** APA/AS