Muhammed P.P. v. Abdul Rahman and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **CRL.REV.PET NO. 425 OF 2022** **AGAINST THE ORDER/JUDGMENTCRA 71/2021 OF ADDITIONAL** **DISTRICT COURT-II, KOZHIKODE CC 330/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **KUNNAMANGALAM** ## **REVISION PETITIONER/S:** **MUHAMMED P.P. AGED 41 YEARS, PARASSERY PARAMBU HOUSE, KANHIRAMUZHI, KALLURUTTY P.O., OMASSERY, CALICUT-DISTRICT, PIN - 673603** **BY ADVS. ABU MATHEW AJU MATHEW BYJU PUTHIYADATH MEETHAL** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE :** **1 ABDUL RAHMAN, AGED 52 YEARS, HUM SAFAR HOUSE, CHENNAMANGALORE, MUKKAM P.O., KOZHIKODE DISTRICT, PIN - 673602 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031** ## **BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.R.P. NO.425 OF 2022** -:2:- ## **O R D E R** This is a Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure challenging conviction and sentence imposed against the revision petitioner as per judgment dated 19.02.2021, who is the sole accused in C.C.No.330 of 2015 on the file of the Judicial First Class Magistrate Court, Kunnamangalam, confirmed by the First Additional Sessions Judge, Kozhikode as per judgment in Crl.Appeal No.71 of 2021 dated 10.02.2022. The respondents herein are the State of Kerala represented by the learned Public Prosecutor as well as the original complainant before the trial court. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Notice to the first respondent stands dispensed with. 3. I shall refer the parties in this Revision **CRL.R.P. NO.425 OF 2022** -:3:- Petition as ‘complainant’ and ‘accused’ for convenience. 4. Shown off unnecessary embellishments, the case put up by the complainant/the 1st respondent herein before the court below is as under: It is alleged by the complainant that the accused borrowed Rs.5,40,000/- from the complainant as loan and issued a cheque dated 19.05.2013 for the said sum with assurance of encashment. 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 lodged the prosecution under Section 138 of the Negotiable Instruments Act. 5. The trial court secured the presence of the accused for trial and evidence was recorded. The **CRL.R.P. NO.425 OF 2022** -:4:- complainant got examined as PW1 and Exts.P1 to P5 were marked. Defence evidence were also adduced and marked as Exts.D1 to D7. 6. On appreciation of the evidence, the trial court convicted and sentenced the accused to undergo imprisonment till the rising of the court and to pay fine of Rs.9,16,000/- to the complainant under Section 357(1)(b) of Cr.P.C. and in default of payment of fine, to undergo simple imprisonment for a period of six months. On appeal, the learned Sessions Judge also confirmed the said conviction and sentence on re-appreciation of the evidence. While challenging the concurrent finding of the trial court as well as the appellate court,it is argued by the learned counsel for the revision petitioner/accused that the accused never issued Ext.P1 cheque to the complainant and it was a cheque issued in favour of one Aslam, who is a friend of the complainant as a security, when the accused borrowed some amount from the said Aslam. However, no evidence **CRL.R.P. NO.425 OF 2022** -:5:- to substantiate this contention available in this case. It is true that Exts.D1 to D7 criminal cases against the accused registered during 2009 were produced to contend that the accused involved in seven cases and he was in jail during 2011. But the trial court and the appellate court negatived the said contention on the finding that no evidence forthcoming to prove the said contention. It is relevant to note that in order to prove a person in jail on the date of execution of the cheque, jail superintendent is a best person to give evidence. But no evidence in this regard is available. Thus, the contention raised by the accused is not at all established. 7. In paragraph 10 of the trial court judgment, it has been observed as under: A chary perusal of Exts.D1 to D7 would go to show that he advanced amounts from several persons believing them to get into the partnership of his business and promised to give large margin of profit and subsequently cheated every one. So, the documents of accused itself shows that the accused is **CRL.R.P. NO.425 OF 2022** -:6:- not a trust worthy person and had a history of cheating other persons after advancing money from them. Actually, the accused produced the documents to show that since the accused is a person with alleged history of involvement in financial crimes, the complainant should not have advanced any amount to him and hence the claim of the complainant that he had advanced Ext.P1 amount to the accused is unbelievable. 8. Though the learned counsel for the revision petitioner argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court, he prayed for eight months' time to pay the compensation. 9. It is the settled law that power of revision 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** , **CRL.R.P. NO.425 OF 2022** -:7:- 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 that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”_ 10. 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 **CRL.R.P. NO.425 OF 2022** -:8:- 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 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.”_ **CRL.R.P. NO.425 OF 2022** -:9:- 11. 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 is non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 12. In this connection, I would like to refer a 3 **CRL.R.P. NO.425 OF 2022** -:10:- 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 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_ **CRL.R.P. NO.425 OF 2022** -:11:- _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 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.”_ 13. 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_ **CRL.R.P. NO.425 OF 2022** -:12:- _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 not in discharge of a debt or liability by adducing evidence.”_ 14. 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_ **CRL.R.P. NO.425 OF 2022** -:13:- _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 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.”_ 15. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the **CRL.R.P. NO.425 OF 2022** -:14:- 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 presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. 16. In this case, the courts below rightly appreciated and re-appreciated evidence to hold that the transaction led to execution of Ext.P1 cheque stands proved and thereby, the complainant could avail presumption under Sections 118 and 139 of NI Act. No illegality could be gathered in the concurrent verdicts to have interference by exercising power of revision. Therefore, the conviction does not require any interference. 17. Coming to the sentence imposed by the courts below, the same is minimum possible and therefore, no interference in this sentence also is not required herein. **CRL.R.P. NO.425 OF 2022** -:15:- Hence, sentence also is confirmed. In the result, this Revision Petition is dismissed. Considering the request of the accused/revision petitioner, six months' time from today is granted to pay the compensation. Therefore, the revision petitioner is directed to appear before the trial court on or before 26.03.2023 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. The execution of the sentence shall stand deferred till 25.03.2023. Sd/- **A. BADHARUDEEN JUDGE** rkj