Pavithran K.V v. Nalinkshan M.V and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945** **CRL.REV.PET NO. 1163 OF 2017** **JUDGMENT IN CRL.APPEAL 398/06 OF COURT OF SESSIONS, THALASSERY DATED 30.06.2017 AND STC NO.274/06 OF ADDL CHIEF JUDICIAL MAGISTRATE, THALASSERY DATED 29.07.2006** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PAVITHRAN K.V S/O. GOPALAN, AGED 65, RESIDING AT DEVI SADANAM, NEAR VAIYIL PEEDIKA, ERANHOLI P.O, THALASSERY. BY ADVS. SRI.K.S.MADHUSOODANAN SMT.S.JESSIN SRI.K.S.MIZVER SRI.P.K.RAKESH KUMAR SRI.M.M.VINOD KUMAR** ## **RESPONDENTS/COMPLAINANT & FORMAL PARTY:** **1 NALINAKSHAN M.V S/O.LATE KRISHNAN, AGED 56, SREESHYLAM P.O, KADIRUR, THALASSERY, KANNUR DISTRICT - 670 101. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. BY ADVS. SRI.ARUN MATHEW VADAKKAN SRI.K.P.SUDHEER SR PP - P G MANU** ## **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No. 1163 of 2017 2 ## **ORDER** ## **Dated this the 24th day of July, 2023** 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.C.No.274/2006 on the file of the Additional Chief Judicial Magistrate, Thalassery and the appellant in Crl.A.No.398/2006 of the Sessions Court, 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 as well as the learned counsel appearing for the 1[st] respondent. 4. In this matter, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience), when cheque for Rs.1,25,000/- dated Crl.R.P No. 1163 of 2017 3 15.12.2005 alleged to be issued by the accused for discharge of the said sum was dishonored for want of funds. 5. Since the accused failed to make the payment on demand, the complainant lodged a complaint under Section 142 of the N.I.Act. 6. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 examined and Exts.P1 to P7 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, DW1 examined on the side of the defence. 7. Thereafter, the trial court appraised the contention and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for nine months and to pay fine of Rs.1,30,000/- and in default of payment of fine simple imprisonment for one and half months also was imposed. Fine was ordered to be paid as compensation to the complainant. 8. Although, the accused challenged the conviction Crl.R.P No. 1163 of 2017 4 and sentence imposed by the trial court, before the Sessions Judge, the learned Sessions Judge also confirmed the conviction while modifying sentence imposed by the trial court as simple imprisonment for three months. 9. The learned counsel for the accused/revision petitioner, while attempting to upset the concurrent verdicts, pointed out two points. The first point argued is that, even though during cross-examination, PW1 deposed about documents to prove his source, when the accused filed petition before the trial court calling the bank details of the accused, the learned Magistrate dismissed the same holding that those documents are not material documents in this case. The learned counsel for the accused/revision petitioner also argued that proof of source to advance the money involved in the transaction is absolutely essential to succeed a prosecution alleging commission of offence punishable under Section 138 of the N.I. Act. In this connection, the learned counsel for the accused has placed a decision of the Apex Court reported in _**M.S. Narayana Memon alias Mani v. State of Kerala and Another [AIR 2006 SC 3366]**_ . Paragraph Nos. 49 and 50 of the Crl.R.P No. 1163 of 2017 5 ## said decision is extracted here under: _“49. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent:_ _(i) He deliberately has not produced his books of accounts. (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange._ _50. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding.”_ 10. Going by the above paragraphs, that has been relied upon by the learned counsel for the accused/revision petitioner, in fact, in paragraph No.49, the Apex Court considered non production of books of accounts by Cochin Stock Exchange and it was held as a rule that the burden of the accused is not as heavy as that of the prosecution when compared with the defendant in a civil proceedings in the matter of adducing the evidence. 11. On perusal of the cross-examination of PW1 for the limited purpose of addressing this question, it is clear that during cross-examination of PW1 the suggestion at the instance of the counsel for the accused was that money to Crl.R.P No. 1163 of 2017 6 the tune of Rs.2,00,000/- borrowed during the year 1999 periodically was clubbed in the cheque and the prosecution was launched. The said suggestion was denied by PW1. At the same time when evaluating cross-examination of PW1 altogether, many questions asked to him during crossexamination accusing PW1 as a person who lent money to various persons. 12. At the same time, the accused/revision petitioner while giving evidence as DW1 admitted issuance of Ext.P1 cheque and stated that Ext.P1 cheque was issued in the year 1999. He also stated that he issued two more cheques during July and September, 1999. It is also stated that he had paid Rs.2,00,000/- during July, 2005 to the complainant and cleared the liability. If so, the contention raised by the learned counsel for the revision petitioner disputing source of PW1 to advance the cheque amount cannot be appreciated. 13. 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 exhaustive to re-appreciate the evidence to have a contra finding. In Crl.R.P No. 1163 of 2017 7 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 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_ Crl.R.P No. 1163 of 2017 8 _to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”_ 14. 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 non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court 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_ Crl.R.P No. 1163 of 2017 9 _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.”_ 15. 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 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 Crl.R.P No. 1163 of 2017 10 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. 16. In this case, the trial court as well as the Appellate Court given emphasis to the evidence of PW1 to hold that, the accused issued Ext.P1 cheque for the consideration shown therein and the same got dishonored for want of funds. Accordingly, on the finding that, the complainant discharged his initial burden in the matter of transaction and execution of cheque, under Section 118 and 139 of the N.I. Act, the courts below given benefit of presumptions in favour of the complainant. 17. Law regarding presumption is well settled. 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: _“The presumption mandated by S.139 of the Act_ Crl.R.P No. 1163 of 2017 11 _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 accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually_ Crl.R.P No. 1163 of 2017 12 _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.”_ 18. 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: _“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_ Crl.R.P No. 1163 of 2017 13 _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.”_ 19. 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 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_ Crl.R.P No. 1163 of 2017 14 _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 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_ Crl.R.P No. 1163 of 2017 15 ## _issued in discharge of a debt.”_ 20. To sum up in the case at hand, nothing available to revisit the concurrent verdicts of conviction entered in by the Trial Court as well as the Appellate Court. Therefore, the conviction is confirmed and sentence stands modified, in the interest of justice. 21. Thus, the revision petition succeeds in part and accordingly stands allowed in part as indicated herein below:- 22. The accused is sentenced to undergo simple imprisonment for a day till raising of the Court and to pay fine of Rs.1,30,000/- for the offence punishable under Section 139 of the N.I. Act. Fine shall be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of three months. 23. The learned counsel for the petitioner sought for three months time to pay the fine/compensation. Considering the fact that, the cheque is of the year 2005 and the amount as Rs.1,30,000/-, I am inclined to grant Crl.R.P No. 1163 of 2017 16 one month time to the accused from today to pay the fine and to undergo the sentence. 24. Therefore, the revision petitioner/accused is directed to surrender before the trial court on 24.08.2023 to undergo the modified 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 23.08.2023. Registry is directed to forward a copy of this order to the trial court for information and compliance within seven days. ## **Sd/-** **A. BADHARUDEEN JUDGE** SK Crl.R.P No. 1163 of 2017 17 ## **APPENDIX OF CRL.MC 1163/2017** **PETITIONERS' ANNEXURES : ANNEXURE-I JUDGMENT IN O.S.218/08 OF SUB COURT, THALASSERY DATED 30.09.2010 ANNEXURE-II PHOTOCOPY OF THE PETITION TO ACCEPT ANN-I BEFORE APPELLATE COURT ANNEXURE-III PHOTOCOPY OF THE JUDGMENT IN CRL.R.P. 1589/2013 DATED 19.01.2017 OF THIS HON'BLE COURT** **RESPONDENTS' ANNEXURES : ANNEXURE R1 ( A ) CERTIFIED COPY OF THE JUDGMENT DATED 9.4.2021 IN A.S. NO. 140/2013 PASSED BY ADDITIONAL DISTRICT JUDGE, THALASSERY**