P. Devarajan v. State of Kerala and Mathew V.J.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 12[TH] DAY OF JULY 2023 / 21ST ASHADHA, 1945** **CRL.REV.PET NO. 103 OF 2016** **AGAINST THE ORDER/JUDGMENTIN CC 76/2009 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS -I, PERINTHALMANNA** **CRA 375/2011 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **P.DEVARAJAN S/O.P.K.VELAYUDHAN, PADINHATTIL VEETTIL KADAKAM PALLEEL, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM DISTRICT.** **BY ADV SRI.K.AMAR RAGH** ## **RESPONDENTS/RESPONDENT/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 MATHEW V.J. AGED 57 YEARS S/O.VATHACHIRA VEETIL JOSEPH, KURUVAMBALAM AMSOM, MALAPARAMB DESOM, PERINTHALAMANNA TALUK-673 001. BY ADVS. SRI.JITHIN LUKOSE SRI.JITHIN LUKOSE SRI.P.SAMSUDIN SRI.VIPIN NARAYAN A, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON** **12.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 103 OF 2016** **2** ## **ORDER** Dated this the 12[th] day of July, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for convenience), challenging judgment in C.C.No.76/2009 on the files of the Judicial First Class Magistrate Court-I, Perinthalmanna and also in Crl.A.No.375/2011 on the files of the Special Court for SC/ST (POA) Act Cases, Manjeri. 2. The revision petitioner is the sole 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. 4. I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 5. The brief facts of the case put up by the complainant before the trial court are as under: **CRL.REV.PET NO. 103 OF 2016** **3** The complainant herein launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter), when cheque dated 29.11.2008 for Rs.2,70,000/- (Rupees two lakh seventy thousand only) allegedly issued by the accused in favour of the complainant to discharge the said sum, was dishonored, when it was presented for collection. Soon after the dishonor, legal notice was issued demanding the said amount. 6. The trial court secured the presence of accused for trial and finally tried the matter. During trial, PW 1 was examined and Exts.P1 to P5 were marked on the side of the complainant. 7. On appearance of the accused, he filed an application under Section 205 Cr.P.C. and consequently, the personal appearance of the accused was dispensed with. No defence evidence was adduced. 8. On appreciation of evidence, the learned Magistrate found that the accused committed the offence punishable under **CRL.REV.PET NO. 103 OF 2016** **4** Section 138 of the N.I. Act and accordingly, the accused was sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.2,80,000/- to the complainant under Section 357(3) of Cr.P.C. In default of payment of compensation, simple imprisonment for a period of three months also was imposed. 9. When the matter was taken in appeal, the learned Special Judge confirmed the conviction as well as the sentence imposed by the trial court. 10. While challenging concurrent verdicts of conviction and sentence, the learned counsel for the revision petitioner would submit that the cheque lacks consideration and the execution of the cheque not proved. It is also submitted that the accused has no connection with the admission of Mariyan Engineering College, Thiruvananthapuram and cheque given by the accused was misused by one Hamsa, who assured admission to the son of the complainant in Mariyan Engineering College, Thiruvananthapuram. **CRL.REV.PET NO. 103 OF 2016** **5** 11. In fact, the courts below relied on the evidence of PW1 and Exts.P1 to P5 to hold that transaction as well as the execution stood proved. Thus, it appears that no valid contention raised to re-visit the concurrent findings of the trial court. 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 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. As I have already pointed out, in this case, the evidence of PW1 and Exts.P1 to P5, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin **CRL.REV.PET NO. 103 OF 2016** **6** 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 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** **CRL.REV.PET NO. 103 OF 2016** **7** **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. In the result, this revision petition is allowed in part. The conviction stands confirmed and the sentence stands modified, whereby the accused/revision petitioner is sentenced to undergo imprisonment for a day till rising of the court and to pay a fine of Rs.2,80,000/- (Rupees two lakh eighty thousand only) and the said amount shall be given as compensation to the complainant under Section 357(1) of the Cr.P.C. In default of payment of fine, the accused shall undergo imprisonment for a period of four months. 16. Since the transaction is of the year 2008, I am inclined to grant one month time from today to the accused to **CRL.REV.PET NO. 103 OF 2016** **8** pay the compensation and therefore, execution of the sentence shall stand deferred till 11.08.2023 and the accused is directed to appear before the trial court on 12.08.2023, either to pay the fine amount or to undergo the modified sentence. 17. In default to do so, the trial court is directed to execute the sentence as per law without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. ## **Sd/-** **A. BADHARUDEEN JUDGE** nkr