Padinjare Veettil Sumesh v. Ajitha Surendan and State of Kerala

Crl.R.P.No.765/2023 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 CRL.REV.PET NO. 765 OF 2023 ``` ``` AGAINST THE JUDGMENT in STC 49/2016 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS -IV, KANNUR CRA 137/2017 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, ``` ## **`THALASSERY`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` PADINJARE VEETTIL SUMESH AGED 46 YEARS S/O. KUNHIRAMAN, NEAR HANUMARAMBALAM, TEMPLE ROAD BUS STOP, P.O., MANDUR, KANNUR DISTRICT, PIN – 670501. BY ADVS. MATHEW KURIAKOSE T.G.SUNIL (PERUMBAVOOR) G.GIREESH J.KRISHNAKUMAR (ADOOR) SHAJI P.K. MONI GEORGE C.N.PRAKASH ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1AJITHA SURENDRAN AGED 51 YEARS W/O. SURENDRAN, SURYA NIVAS, IRINAV P.O., VIA CHERUKUNNU, KANNUR DISTRICT, PIN – 670301. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. ``` ``` SENIOR PUBLIC PROSECUTOR SRI P G MANU ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON25.07.2023, THE COURT ON 08.08.2023 DELIVERED THE FOLLOWING: ``` Crl.R.P.No.765/2023 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.765 of 2023_ ================================ _Dated this the 8[th] day of August, 2023_ ## _**O R D E R**_ This case emerged when the complainant filed a complaint before the Judicial First Class Magistrate Court, Payyannur, when cheque for Rs.3 lakh dated 1.7.2013 issued by the accused to discharge the said amount alleged to be borrowed by the accused from the complainant was dishonoured for want of funds. According to the complainant, even though legal notice was issued and re-payment of the amount was demanded, the accused did not heed the same. Thus the complainant alleged that the accused herein committed the offence punishable under Section 138 of the N.I Act. 2. The complaint was originally filed before the Judicial First Class Magistrate, Payyannur. Later transferred to Judicial First Class Magistrate-I, Kannur, as per the order from the Chief Judicial Magistrate, Thalassery. Crl.R.P.No.765/2023 3 3. I shall refer the parties in this revision petition as `complainant' and `accused' hereinafter, for convenience. 4. Judicial First Class Magistrate Court-I, Kannur proceeded with trial after securing the presence of the accused. During examination, PW1 was examined and Exts.P1 to P7(a) were marked through PW1. Thereafter, DW1 and DW2 were examined and Exts.D1 and D2 were marked. The trial court on appreciation of evidence, found that the accused herein committed offence punishable under Section 255(2) and 138 of the Negotiable Instruments Act and sentenced to simple imprisonment till rising of court and to pay compensation of Rs.3,70,000/- and in default of payment of compensation, simple imprisonment for a further period of 15 days and if fine amount is recovered or paid, the fine amount was ordered to be paid as compensation to the complainant, under section 357(1) of Cr.P.C. 5. Even though the revision petitioner/accused challenged the conviction and sentence imposed by the Magistrate Court, by way of appeal the appellate court dismissed the appeal and confirmed the conviction and sentence without interference. Crl.R.P.No.765/2023 4 6. The learned counsel for the revision petitioner/accused zealously argued to contend that in this matter date of issuance of cheque and the manner in which the same was issued are in dispute. According to him, on perusal of Ext.P1 cheque, it could be gathered that just below the signature of accused in Ext.P1, date was written as `25.12.2012'. Whereas the case of the accused is that he had issued a signed cheque dated 01.01.2013 for 2 lakh, when he borrowed Rs.1 lakh on `25.12.2012' after writing date `25.12.2012', just below the cheque. The further case is that the complainant thereafter materially altered the date in the cheque as `01.07.2013' by altering the date 01.01.2013 and launched prosecution. Since there is material alteration in the cheque the entire prosecution would fail, is the submission of the learned counsel for the accused/revision petititoner. 7. In order to address this contention, I have perused the judgment of the trial court as well as the appellate court. The contention raised by the accused before the trial court was that the transaction was on 25.12.2012 and the accused borrowed Rs.1 lakh for one week and accordingly he had issued Ext.P1 cheque dated Crl.R.P.No.765/2023 5 `01.01.2013' for Rs.3 lakh. But the case of the complainant is that the accused borrowed an amount of Rs.3 lakh and issued cheque for the sum on 01.07.2013 on the date of borrowing. Further, when he presented the cheque for collection, the same was dishonoured for the reason `insufficiency of funds'. Even though PW1 was cross examined at length to shake her version in the matter of transaction and execution of the cheque, nothing substantiated and therefore, the courts below given emphasis to the evidence of PW1 to hold that the complainant discharged her initial burden. 8. It is relevant to note that the accused himself got examined as DW1 and deposed that he had borrowed Rs.1 lakh from the complainant on 25.12.2012 and he had issued cheque dated 01.01.2013 for Rs.3 lakh for the repayment of the said amount. According to him, cheque was given on 25.12.2012. During cross examination, the accused admitted that Ext.P1 is the cheque he had issued and he had issued Ext.D1 notice to the complainant demanding the cheque. The crucial dispute is, what is the date of the cheque? According to the accused, the date of the Crl.R.P.No.765/2023 6 cheque is 01.01.2013 and the transaction was on 25.12.2012. But the case of the complainant is that onthe date of borrowing Rs.3 lakh the accused issued cheque dated 01.07.2013. On perusal of copy of the cheque handed over by the learned counsel for the accused, no signs of alteration in the cheque could be gathered and the entries therein appear to have written at a stretch, including the date `01.07.2013'. It is true that DW2 was examined to support the case advanced by the accused. Since the date of the cheque did not have any signs of material alteration on its perusal as contended by the accused and the accused failed to prove any material alteration in the cheque in any manner, the challenge raised by the accused on the ground that the cheque was materially altered by putting another date, viz., `01.07.2013' not at all established. It is relevant to note that regarding this contention the trial court observed that the accused put date `25.12.2012' just below the signature and the same was noticed by the complainant only when question was asked in this regard, during cross examination and the intention of the accused is with an oblique motive to challenge the transaction. In this matter, admittedly the Crl.R.P.No.765/2023 7 accused issued Ext.P1 cheque for Rs.3 lakh and transaction stated by the complainant is different from the transaction stated by the accused. According to the accused, he had issued Ext.P1 after borrowing Rs.1 lakh on 25.12.2012 for a period of one week, but the complainant's consistent case is that the accused borrowed Rs.3 lakh and cheque was dated 01.07.2013. The learned Magistrate as well as the Sessions Judge appreciated the evidence and held that the case put up by the complainant is fully established. But it is noticed that the accused did not dispute other entries in the cheque except the date. Thus issuance of cheque for Rs.3 lakh after borrowing Rs.1 lakh for a period of one week is not digestible to prudence. That apart, the case of the acused is that he had discharged the admitted liability. But no reliable evidence forthcoming in this regard. In addition to that the accused, who alleged to have discharged the liability not taken any steps to get back the cheque and he had issued Ext.D1 only on receipt of the demand notice. Therefore the complainant's case is well established by evidence and the case put up by the accused is not believable and not digestible to prudence. It was observed by the Crl.R.P.No.765/2023 8 trial court that issuance of cheque for Rs.3 lakh after borrowing Rs.1 lakh for a short period of one week is an improbability. In fact, the courts below, after holding so, held that the complainant discharged the initial burden, so as to avail the benefit of presumptions in his favour. 9. As I have already pointed out, in this case, the evidence of PW1 and Exts.P1 to P7(a), 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. 10. 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.765/2023 9 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. 11. In fact, the learned counsel for the accused miserably failed to substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available to this Court. 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. Crl.R.P.No.765/2023 10 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. 12. For the above reasons, this revision petition must fail and is accordingly, dismissed. Since the transaction is of the year 2017, I am inclined to grant two months time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 06.10.2023 and the accused is directed to appear before the trial court on 07.10.2023, to pay the fine amount and to undergo the sentence. 13. 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/-_ **==> picture [53 x 37] intentionally omitted <==** _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_