Mujeeb P.T. v. Shoukath and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 ``` ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 206/2017 OF DISTRICT COURT & ``` ``` SESSIONS COURT, MANJERI ``` ``` ST 683/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`PERINTHALMANNA`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` MUJEEB P.T. AGED 44 YEARS S/O ABOOBACKER HAJI, POONTHOTTATHIL HOUSE, PERINTHALMANNA P.O. MALAPPURAM DISTRICT PIN - 679322 BY ADVS. P.SAMSUDIN LIRA A.B. ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1V. SHOUKATH AGED 48 YEARS S/O MUHAMMED VARANGOTTIL, VARANGOTTIL HOUSE, PERINTHALMANNA, MALAPPURAM DISTRICT PIN - 679322 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 679322 BY ADV KAMMAPPU C.M SRI.VIPIN NARAYAN A., SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 2 ``` ## **O R D E R** Dated this the 16[th] day of January, 2023 This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the accused in S.T.No.683/2014 on the files of the Judicial First Class Magistrate Court-I, Perinthalmanna, arraying the original complainant as the 1[st] respondent and the State of Kerala as the 2[nd] respondent. 2. The revision petitioner impugns judgment in S.T.No.683/2014 dated 25.10.2017 on the files of the Judicial First Class Magistrate Court-I, Perinthalmanna and the judgment in Criminal Appeal No.206/2017 dated 24.11.2018 on the file of the Sessions Court, Manjeri arising therefrom. 3. Heard the learned counsel for the revision petitioner, learned counsel for the 2[nd] respondent as well as the learned Public Prosecutor, on admission. ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 3 ``` 4. I shall refer the parties in this revision as 'complainant' and 'accused' for easy reference. 5. The brief facts of the case put up by the complainant before the trial court are as under: The case of the complainant in brief is that the complainant and the accused were known to each other and the accused was doing real estate business and he was also conducting tyre business at Perintalmanna. For the improvement of the tyre business of the accused he had borrowed a sum of Rs. 3 lakh from the complainant on promising that he would repay the amount. The complainant issued a cheque dated 21.3.2012 of Indus Ind Bank, Perintalmanna branch for a sum of Rs.3 lakh and handed over to the accused and the accused inturn presented the said cheque in his bank and received a sum of Rs.3 lakh on 26.3.2012. Thereafter, the accused further demanded a cheque for a sum of Rs.2 lakh by promising that he would include the complainant as a partner in the tyre business. On ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 4 ``` the basis of the said promise, the complainant issued a cheque for Rs.1,10,000/- in favour of the accused and an amount of Rs.90,000/ was given to the accused by way of cash. Subsequently, the accused presented the above said cheque and withdrawn a sum of Rs.1,10,000/- from the bank. The accused subsequently failed to fulfill his promise and did not make the complainant as a partner in the tyre business. Again the accused demanded an amount of 2,50,000/- from the complainant and since the complainant was not having money in his possession he has given the gold ornaments of his wife weighing 97.100 grams to the accused. Inspite of the promise on the side of the accused that he would return the gold ornaments after four days, but he failed to return the gold ornaments as promised. 6. Thereafter, there was a mediation talk in the presence of Saidalavi and Veeran and as a result of which in order to repay the amount of Rs.5 lakh which was borrowed from the complainant, the accused issued a cheque dated ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 5 ``` 5.1.2014 for an amount of Rs.2 lakh and another cheque for a sum of Rs.2 lakh, and a cheque for Rs.1 lakh to be drawn on Federal Bank, Perintalmanna. Out of the three cheques issued by the accused in favour of the complainant, the complainant presented one cheque for Rs.2 lakh through Canara Bank, Perintalmanna branch but the said cheques bounced due to the insufficiency of fund in the account of the accused. Since the accused did not return back the gold ornaments, the complainant filed a petition before the Sub Inspector of Police, Perintalmanna and the SHO of Perintalmanna called the accused and after that the accused returned the gold ornaments to the complainant. Subsequently, the complainant issued a lawyer notice to the accused and the accused received the notice and sent a reply to the notice raising untenable contentions. On the said premise, the complainant filed complaint under the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act’) alleging that the accused committed offence punishable under Section 138 of ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 6 ``` the NI Act. 7. The trial court secured the presence of the accused for trial. During trial, PW1 and PW2 were examined and Exts.P1 to P8 were marked on the side of the complainant. 8. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, Exts.D1 to D3 were marked on the side of the accused. 9. The defence case put up by the accused is that he had returned the gold ornaments and towards that transaction he had given three cheques by way of security. But the complainant had misused the cheques and filed false complaint against him. 10. The trial court appraised the evidence and finally found that the accused committed offence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for six months and to pay fine of ## **`CRL.REV.PET NO. 843 OF 2022`** ``` 7 ``` Rs.2,00,000/- (Rupees two lakh only). In default of payment of fine, the accused shall undergo simple imprisonment for a further period of three months. The fine was ordered to be given as compensation to the complainant under Section 357(3) of Cr.P.C. 11. The judgment in S.T.No.683/2014 dated 25.10.2017 was challenged before the Sessions Court, Perinthalmanna. The learned Sessions Judge modified the sentence while confirming the conviction as under: “The appellant/accused is sentenced to undergo simple imprisonment for till rising of court and to pay a fine of Rs.2,00,000/- in default of payment of fine simple imprisonment for three months and on realisation of the fine amount, it shall be given to the complainant by way of compensation under Section 357(1)(b) of Cr.P.C..” 12. The concurrent verdicts of conviction entered into by the trial court as well as by the appellate court and the modified sentence imposed by the trial court are under challenge in this revision petition. ## **`CRL.REV.PET NO. 843 OF 2022`** ``` 8 ``` 13. In this matter, this Court is exercising power of revision and the power of revision is not available to appreciate or re-appreciate to have a contra-finding. 14. 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. 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. 15. 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 ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 9 ``` 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 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** . 16. It is relevant to refer a latest decision of the Apex Court reported in [2022(5) KHC 560(SC)], **Oriental Bank of Commerce v. Prabodh Kumar Tewari** , whereas it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be ## **`CRL.REV.PET NO. 843 OF 2022`** ## **`10`** immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 17. 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. 18. At the time of admission hearing, the learned counsel for the accused submitted that nothing to be argued on merits to exhaust the power of revision to revisit the order and the accused is satisfied with grant of six months to pay the fine/compensation and to undergo the modified sentence imposed by the appellate court. 19. On perusal of the concurrent verdicts of conviction and the modified sentence imposed by the Appellate Court, in fact, nothing could be find to revisit the verdicts with the limited ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 11 ``` power of revision since the courts below rightly found that the accused committed offence punishable under Section 138 of the NI Act, relying on the evidence of PW1, supported by the evidence of PW2 and Exts.P7 and P8 statements of accounts showing receipt of money by the accused as contended by the complainant and consequential issue of Ext.P1 in discharge of the said sum. 20. The said findings are perfectly justified in view of the discussions held above. In fact, there is no reason to revisit the concurrent verdicts of conviction as well as the modified sentence. 21. The request of the learned counsel for the accused for grant of six months time highlighting the bad health conditions of the accused was zealously opposed by the learned counsel for the complainant/first respondent confining the period for three months, highlighting the transaction is of the year 2014. Therefore, I am inclined to grant three months to the accused from today to pay the amount and undergo the ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 12 ``` sentence. 22. In view of the discussions, the Revision Petition stands dismissed. 23. Therefore, the revision petitioner/accused is directed to appear before the trial court on or before 18.04.2023 to undergo the sentence and to pay fine. On failure to do so, the trial court is directed to execute the sentence as per law without fail. 24. Since time granted till 18.04.2023, execution of the sentence shall stand deferred till 17.04.2023. Registry shall forward a copy of this order to the court below concerned for information and compliance. ## **Sd/-** **A. BADHARUDEEN** **JUDGE** nkr ``` CRL.REV.PET NO. 843 OF 2022 ``` ``` 13 ``` ## **`APPENDIX OF CRL.REV.PET 843/2022`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE DISCHARGE SUMMARY DATED 28-11-2016 OF MOULANA HOSPITAL PERINTHALMANNA MEDICAL RECORDS OF THE PETITIONER Annexure A2TRUE COPY OF MEDICAL RECORDS DATED 01- 05-2020 IN KIMS AL SHIFA HOSPITAL PERINTHALMANNA Annexure A3TRUE COPY OF DISCHARGE SUMMARY DATED 06-03-2021 OF RAJIV GANDHI CO-OPERATIVE HOSPITAL KALLEKKAD IN PALAKKAD ```