Muhammed Saleem S.V. v. State of Kerala and Marble Mahal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945** **CRL.REV.PET NO. 735 OF 2023** **ORDER DATED 22.11.2021 IN ST 398/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, VATAKARA JUDGMENT DATED 10.02.2023 IN CRL.APPEAL NO.271/2021 OF ADDITIONAL SESSIONS COURT, VATAKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** MUHAMMED SALEEM.S.V AGED 52 YEARS S/O MUHAMMED,SHARAF VILLA, IRINGAL, AMSOM,KOTTAKKAL,VATAKARA, PIN - 673521 BY ADVS. M.P.PRIYESHKUMAR K.LAL MOHAN ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN - 682031 2 M/S.MARBLE MAHAL N.H BYPASS, NARAYANA NAGAR,VATAKARA, REP BY PROPRIETER,AHAMMED , S/O.MOOSA HAJI, AGED 50/19, MADATHIL KANDIYIL, NAADAKKUTHAZHA, VATAKARA, PIN - 673104 BY ADV.SRI.P G MANU, SR.PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.735/2023 2 ## **ORDER** ## _**Dated this the 10[th] day of August, 2023**_ This revision petition has been filed under Section 397(1) read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for convenience), challenging judgments in S.T.No.398 of 2019 dated 22.11.2021, on the files of the Judicial First Class Magistrate Court-I, Vatakara, and Crl.A.No.271 of 2021 dated 10.02.2023, on the files of the Additional Sessions Court, Vatakara. 2. The revision petitioner is the accused in the above case. The respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State and perused materials. 4. I would like to refer the parties in this revision petition as ‘complainant’ and ‘accused’ for convenience. 5. The brief facts of the case put up by the complainant before the trial court are as under : The accused purchased tiles worth Rs.1,41,216/- from the Crl.R.P.No.735/2023 3 complainant Company, namely, Marble Mahal and in discharge of the said liability, issued a cheque dated 22.03.2019 drawn on Kozhikode District Co-operative Bank Ltd., Payyoli Branch. Though the complainant presented the cheque for collection, the same got dishonoured for want of funds. The further case of the complainant was that despite having issued notice of demand dated 02.05.2019, the amount was not paid. On this premise, complainant lodged a complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the N.I.Act’ hereinafter), by the accused. 6. The trial court secured presence of the accused and the complainant for trial and tried the matter. During trial, complainant got examined as PW1 and Exts.P1 to P7 were marked. On completion of prosecution evidence, accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence, but no evidence was adduced. 7. On appreciation of evidence, after hearing both sides, the learned Magistrate found that the accused committed offence punishable under Section 138 of the NI Act. Accordingly, he was sentenced to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1,41,126/- under Section Crl.R.P.No.735/2023 4 357(3) of Cr.P.C. and default sentence for a period of six months also was imposed. 8. Aggrieved by the judgment of the Judicial First Class Magistrate Court-I, Vatakara, the revision petitioner filed appeal before the Additional Sessions Court, Vatakara and on reappreciation of evidence, the learned Additional Sessions Judge modified the sentence to simple imprisonment till the rising of the court and payment of compensation of Rs.1,41,126/- and imposed three months’ default imprisonment, on failure to pay the compensation. 9. Thus, the concurrent verdicts of conviction imposed by the trial court as well as the appellate court and the modified sentence imposed by the appellate court are under challenge in this revision petition. The specific case of the complainant before the courts below was that the accused purchased tiles worth Rs.1,41,216/- and the cheque issued in discharge of the debt was dishonoured. Before the trial court, a contention was raised by the accused to the effect that he purchased tiles worth Rs.1,38,216/from Marble Mahal, but the balance amount outstanding is only Rs.88,216/-. The further contention of the accused was that the complainant delivered defective and second quality tiles and the Crl.R.P.No.735/2023 5 demand for fresh tiles from the accused was not heeded. Therefore, the cheque amount is not liable to be paid and the cheque is one misused for the purpose of this case. 10. The trial court as well as the appellate court did not accept the said contentions for want of evidence and the trial court and the appellate court consistently held that evidence of PW1 supported by Exts.P1 to P7 categorically established the transaction of purchase of marble and consequential issuance of cheque. Accordingly, it was found by the courts below that the complainant discharged his initial burden in the matter of transaction and execution of Ext.P1 cheque. Therefore, complainant could very well avail the benefit of twin presumptions under Sections 118 and 139 of the N.I.Act. Accordingly, the accused was convicted and sentenced as indicated above. 11. Now the revision petitioner/accused assails concurrent findings of conviction and sentence. While arguing to unsettle the concurrent verdicts, it is fairly contended by the learned counsel for the revision petitioner that the revision petitioner will be satisfied if six months' time is granted to him to pay the amount. 12. 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 Crl.R.P.No.735/2023 6 and exhaustive to re-appreciate the evidence to have a contra finding. Decisions reported in _**[(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda**_ , are on this point. 13. In this case, the evidence of PW1 supported by Exts.P1 to P7, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly. 14. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I. Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions 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. It has been settled in law that the accused can either adduce independent Crl.R.P.No.735/2023 7 evidence or rely on the evidence tendered by the complainant to rebut the presumptions. See decisions reported in _**[2010 (2) KLT 682 (SC)], Rangappa v. Mohan; [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, [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**_ . In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above. 15. For the above reasons, this revision petition must fail and is accordingly, dismissed. However, in consideration of the request of the learned counsel for the revision petitioner to grant six months' time to pay the compensation, I am inclined to grant two months' time from today to pay the amount. The revision petitioner shall appear before the trial court on 10.10.2023 to pay the compensation or to undergo the default sentence. Execution of the sentence stands deferred till 09.10.2023. Crl.R.P.No.735/2023 8 16. If the revision petitioner/accused fails to appear before the trial court, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** csl