Naroth Jagadeesh v. Anandajyothi A.K and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 CRL.REV.PET NO. 509 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRL.A.NO. 03/2020 OF SESSIONS COURT IN STC NO.12/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,** ## **THALASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **NAROTH JAGADEESH AGED 33 YEARS, SON OF MANDAN, RAMESH NIVAS, AYYALLUR, KOLARI.P.O, MATTANNUR, KANNUR DIST, PIN - 670702 BY ADV CIBI THOMAS** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** - **1 ANANDAJYOTHI.A.K, AGED 45 YEARS, D/O KRISHANAN, "SREERANJINI", R.V. METTA, BAVODE .P.O, KANNUR DIST, PIN - 670622** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** ## **PP-SRI.G.SUDHEER** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON** **22.11.2022, THE COURT ON 01.12.2022 DELIVERED THE FOLLOWING:** Crl.R.P No. 509 of 2022 2 ## **ORDER** ## **Dated this the 1st day of December, 2022** This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in S.T.No.12/2016 on the file of the Judicial First Class Magistrate Court-II, Thalassery. The respondents herein are the original complainant as well as State of Kerala. 2. I would like to refer the parties in this revision petition as accused and complainant, for convenience. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State. Notice to the 1[st] respondent stands dispensed with. 4. Epitomized form of the case advanced by the complainant before the trial court is as under:- 5. According to the complainant, the accused borrowed Rs.2,00,000/- from the complainant on 20.07.2013 and in repayment of the said sum along with Crl.R.P No. 509 of 2022 3 Rs.3,616/-, a previous debt, the accused issued cheque for Rs.2,03,616/- dated 20.10.2013. When the cheque was presented for collection, the same got returned unpaid for want of funds. 6. Since the accused failed to make the payment on demand, the complainant lodged a complaint under Section 142 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience), alleging that the accused committed offence punishable under Section 138 of the N.I.Act. 7. The trial court secured the presence of the accused for trial and tried the matter. During trial, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. 8. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and he was given opportunity to adduce defence evidence. But the accused did not adduce defence evidence. 9. The trial court evaluated the evidence and Crl.R.P No. 509 of 2022 4 finally found that, the accused committed offence punishable under Section 138 of the N.I.Act. Accordingly, he was sentenced to undergo imprisonment for a period of two months and to pay compensation of Rs.3,15,775/and in default of payment of compensation, to undergo imprisonment for a period of one month. 10. The accused challenged the above conviction and sentence before the Court of Session, Thalassery, as per Crl.A.No.3/2020. The learned Additional Sessions Judge-I, as per judgment dated 24.03.2022 confirmed the sentence, while modifying the sentence to imprisonment till raising of the Court and maintaining the other form of sentence. 11. The learned counsel for the accused, in fact, sought for time to pay the amount and he did not raise any valid contention to be addressed by this Court, by exercising power of revision. 12. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C. r/w Section 397, which is not wide and Crl.R.P No. 509 of 2022 5 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_ Crl.R.P No. 509 of 2022 6 _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. ...”_ 13. 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_ Crl.R.P No. 509 of 2022 7 _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.”_ 14. 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 Crl.R.P No. 509 of 2022 8 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, 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. 15. In this matter, the trial court as well as the Appellate Court given emphasis to the evidence of PW1 to hold that, the complainant discharged his initial burden in the matter of transaction and execution of Ext.P1 cheque and thereby given benefits of twin presumptions in favour of the complainant. 16. On perusal of the judgments of the trial court, it could be gathered that, during 313 examination, the accused had given statements that, Ext.P1 cheque was originally issued to the husband of the complainant and Crl.R.P No. 509 of 2022 9 the amount borrowed from the husband of the complainant was repaid. In Ext.P6 reply notice also the same contention was taken by the accused by admitting that, the accused had borrowed Rs.10,000/- from the husband of PW1. Anyhow, no evidence adduced to substantiate the transaction between the accused and the husband of the complainant or discharge of the said liability, in any manner. 17. In a case involving commission of offence punishable under Section 138 of the N.I.Act, the complainant would get benefit of two presumptions under Section 138 and 139 of the N.I.Act, when his initial burden in the matter of transaction and execution is discharged. 18. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Sri.Mohan**_ . In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution punishable under Section 138 of the N.I Act and held as under: Crl.R.P No. 509 of 2022 10 _“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. 509 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.”_ 19. 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: Crl.R.P No. 509 of 2022 12 _“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 not in discharge of a debt or liability by adducing evidence.”_ 20. 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], _**M/s.Kalamani Tex & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions Crl.R.P No. 509 of 2022 13 ## 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 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_ Crl.R.P No. 509 of 2022 14 _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.”_ 21. In this matter, the available materials do not suggest anything to interfere with the concurrent verdicts, in any manner and therefore, this revision petition must fail. In the result, this revision petition is dismissed. 22. However, taking note of the prayer for time, sought for by the learned counsel for the accused, I am inclined to grant two months time to the accused from today to pay the fine and to undergo the sentence. 23. Therefore the revision petitioner/accused is directed to surrender before the trial court on 01.02.2023 Crl.R.P No. 509 of 2022 15 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 31.01.2023. Registry is directed to forward a copy of this order to the trial court for information and compliance within seven days. **Sd/-** SK/ **A. BADHARUDEEN JUDGE**