Pilakkatt Santha v. State of Kerala and M. Gopinathan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 CRL.REV.PET NO. 1770 OF 2009** **AGAINST THE JUDGMENT IN CRA 583/2007 OF ADDITIONAL** **SESSIONS JUDGE KOZHIKODE** **JUDGMENT IN ST 881/2005 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF MARADU CASES, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** PILAKKATT SANTHA, D/O.M.C.KRISHNAN NAIR, 4/528 A, KARIMBIL HOUSE, KACHERI AMSOM, KURUMBRAKKATTUSSERRI DESOM, JOSEPH ROAD, KOZHIKODE – 32. BY ADV SRI.S.RAJEEV ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 M. GOPINATHAN, AGED 48 YEARS, S/O KRISHNAN, GAYATHRI NIVAS, NADUVATTOM AMSOM, DESOM, KOZHIKODE TALUK. BY ADVS. SMT.M.MANJU SRI.R.SUDHISH SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.01.2023, THE COURT ON 01.02.2023 PASSED THE FOLLOWING: Crl.R.P No.1770/2009 2 ## _**A. BADHARUDEEN, J.**_ _================================ Crl.R.P No.1770 of 2009_ ================================ _Dated this the 1[st] day of February, 2023_ ## _**O R D E R**_ This revision petition, filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience), is at the instance of the sole accused in S.T.No.881/2005 on the files of the Special Judicial Magistrate (Marad Cases), Kozhikode. 2. Challenge in this revision petition is the veracity of the judgment of the in the above case dated 05.07.2007, modified by the Additional Sessions Judge, Kozhikode as per judgment in Crl.Appeal No.583/2007 dated 01.04.2009. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor as well as the learned counsel for the 2nd respondent. Crl.R.P No.1770/2009 3 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. The complainant initiated prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) by the accused, when cheque for Rs.5,00,000/- dated 18.02.2005, alleged to be issued by the accused to the complainant in repayment of Rs.5,00,000/- alleged to be borrowed by the accused from the complainant for the purpose of business, was dishonoured, when it was presented for collection. 6. The trial court secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P4 were marked on the side of the complainant. The accused was questioned under Section 313(1)(b) of Cr.P.C and the accused adduced defence evidence. Accordingly, DW1 also was examined. 7. The trial court given emphasis to the evidence of PW1 and Exts.P1 to P4 to hold that the complainant discharged his Crl.R.P No.1770/2009 4 initial burden in the matter of executing Ext.P1 cheque. 8. Trial court appraised the evidence in detail and finally convicted the accused for the offence punishable under Section 138 of the N.I Act and sentenced to undergo simple imprisonment for a period of 2 months and to pay Rs.5 lakh to the complainant as compensation under Section 357(3) of Cr.P.C and in default, to undergo simple imprisonment for one month also was imposed. 9. The said verdict was challenged before the Sessions Court, Kozhikode and the learned Additional Sessions Judge, on re-appraisal of the evidence confirmed the conviction and finally modified the sentence to imprisonment till the rising of the court and to pay compensation of Rs.5 lakh and in default of payment of compensation, to undergo simple imprisonment for a period of 2 months. 10. While impeaching the concurrent verdicts of conviction and the modified sentence imposed by the appellate court, the learned counsel for the revision petitioner reiterated the Crl.R.P No.1770/2009 5 contentions raised before the trial court as well as the appellate court on the assertion that the complaint is barred by limitation. It is submitted that the notice of demand issued by the accused was received by the husband of the complainant on 1.3.2000. But, in the acknowledgment card marked as Ext.P4(b), there is material alteration as to the date of acceptance of notice. It is argued that, in fact, DW1 accepted the notice on 1.3.2005; but in the acknowledgment card the date was materially altered as 7.3.2005, to save the period of limitation. The learned counsel submitted further that since there was material alteration, the accused filed petition to get expert opinion to prove the same. But the said initiative failed since it was reported that the back records pertaining to the postal article were missing. The appellate court found that there is some overwriting on the date in Ext.P4(b). But the appellate court was not inclined to accept the contention holding that if at all the complaint was filed beyond the period of limitation, the same could be entertained after condoning the delay. The trial court also negatived this contention. Crl.R.P No.1770/2009 6 11. The learned counsel for the accused/revision petitioner given heavy reliance on the evidence of DW1 to prove that he had received the notice on 1.3.2005. In the case on hand, it is clear that immediately on dishonour of Ext.P1 cheque as per Ext.P2 dishonour memo and Ext.P3 cheque return memo, the complainant caused legal notice demanding the amount covered by the cheque. The specific case put up by the complainant before the trial court was that the accused accepted the demand notice on 7.3.2005. Whereas the accused would contend that the notice was received by her husband on 1.3.2005. The plank of this contention is based on an overwriting in Ext.P4(b) acknowledgment card regarding the date of acceptance of notice as “7.3.2005”. It is true that the appellate court also observed that there was overwriting. 12. The crucial question is, on which date accused accepted notice? I have perused the deposition of PW1. During cross examination of PW1, no challenge was raised to the effect that the complainant or any persons related to the complainant Crl.R.P No.1770/2009 7 had overwritten or altered the date in the acknowledgment card as `7.3.2005' instead of `1.3.2005'. However, leaving PW1 even without asking a remote suggestion as to the effect that the complainant or his men materially altered the date in Ext.P4(a), DW1 was examined and DW1 given evidence in support of the same contention. 13. It is pertinent to note that when the dispute is with regard to the date of acceptance of the notice and the complainant asserts the same as 7.3.2005, while the accused would allege the same as 1.3.2005, the best evidence should have been adduced by the accused, who raised the contention, must be by examining the postman or to bring the relevant records, available with the postal authority to prove the date of acceptance of notice by DW1. It is true that when an attempt was made by the learned counsel for the accused to get expert opinion regarding the date in Ext.P4(a), the same could not be materialised for want of records. But the same is not a reason for the accused not to summon and examine the postman, who served the notice since he had direct knowledge Crl.R.P No.1770/2009 8 with regard to service of notice on one part, supported by the official records on the other part. Therefore, examination of the postman should be the procedure to adduce best evidence to prove that the notice was served upon DW1 on 1.3.2005 and not on 07.03.2005 and therefore the complaint filed on 18.04.2005 is barred by limitation, since the same was beyond the period of 45 days. But the accused had not even attempted to summon the postman in this regard. That shows that the accused was not interested to bring the best evidence to prove the said contention. 14. As I have already pointed out, merely because there was an overwriting in Ext.P4(b), the same was not a reason to hold that there is material alteration. Such overwriting was possible at the time when the person who accepted it if put the date by overwriting. It is true that somebody handling the same also may overwrite the same. Usually acknowledgment card will be addressed to the counsel, who issued notice and therefore overwriting in the acknowledgment card by the complainant Crl.R.P No.1770/2009 9 cannot be believed normally, unless the same is established by the cogent and convincing evidence. In this matter during cross examination of PW1, no question was asked regarding overwriting in Ext.P4(b) by PW1, as I have already pointed out. It is true that DW1 stated that he had accepted the notice on 1.3.2005, but the said evidence cannot be relied on, when the accused spared the examination of the postman, who is competent to give best evidence on this point. In view of the matter, I agree with the finding of the lower courts to hold that the material alteration alleged by the accused in Ext.P4(b) is not at all established and the complaint had been filed within time and the same was not barred by limitation. 15. The second point argued by the learned counsel for the revision petitioner is that when the transaction stated in the complaint and the one deposed by the complainant are different, the same is a reason to disbelieve the case of the complainant. In this regard, he had placed decision of this Court reported in [2021 (2) KHC 432], _**Basheer K. v. C.K.Usman Koya & anr.**_ and relied Crl.R.P No.1770/2009 10 ## on para.30 of the above judgment. Para.30 of the above judgment ## is as under: _“Complainant stated that the money was advanced to facilitate a visa business carried on by the accused. He thus resiled from the specific contention that there existed business transactions between them. It had been initially deposed that all records in connection with the business is kept by the accused and he has no document at all in connection with that business. That would lead to an inference as suggested during cross – examination of the complainant that actually PW1 was not having any business transaction with DW1 and that is why he was not having any records in connection with the same. The nature of business of the accused is said to be purchase of visa from Arab Nationals, who alone can sponsor foreign nationals, which, for a minor profit would be given to seekers of jobs in Gulf countries. But he could not state any of such visa transaction of the accused or himself with a third party. The prevarication of the complainant would probabilise the defence that there was no joint business conducted by them.”_ 16. There is no quarrel that when the complainant given contrary evidence regarding the transaction and execution of the cheque, the ratio held in _**Basheer**_ 's case ( _supra_ ) would apply. In this matter, in the complaint the complainant specifically alleged that the accused borrowed the amount for his business purpose. During cross examination, the complainant reiterated that money was borrowed for the purpose of business, while admitting that Crl.R.P No.1770/2009 11 there was a sale agreement prior to that. 17. In the instant case, the case put up by the accused throughout the proceedings is that the husband of the accused borrowed Rs.90,000/- from the complainant during 2002 and towards security for the payment of the same amount, 4 blank cheques belonged to the husband as well as 3 blank cheques belonged to the accused were given to the complainant apart from handing over 3 signed blank stamp papers worth Rs.50/- by the husband of the accused. The accused not stated whether the said admitted liability has been discharged. 18. In the above context, the courts below given emphasis to the evidence of PW1 to hold that the complainant successfully discharged the transaction led to execution of the cheque. 19. In this matter, as I have already pointed out, issuance of cheque is admitted while admitting liability to the tune of Rs.90,000/- and the said liability also was not discharged. When notice of demand was issued, no reply also was sent. In such a case, the courts below perfectly justified in giving the benefit of Crl.R.P No.1770/2009 12 presumption under Sections 118 and 139 of the N.I Act in favour of the complainant. 20. 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. 21. 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 Crl.R.P No.1770/2009 13 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**_ . 22. 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**_ , wherein 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 immaterial. Crl.R.P No.1770/2009 14 The presumption which arises on the signing of the cheque canot 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 defence whether cheque was issued towards payment of a debt or in discharge of a liability. 23. No other contentions raised in this matter. Therefore, there is no reason to disbelieve the transaction as well as the execution of the cheque. As such, the concurrent verdicts of conviction do not require any interference. The sentence also does not require any interference since the appellate court rightly modified the substantive sentence to the least minimum possible, viz., imprisonment till rising of the court. 24. In fact, in the instant case, the learned counsel for the accused failed to establish that the complaint was barred by limitation and also the complainant not discharged his initial burden in the matter of prosecution led to execution of Ext.P1 Crl.R.P No.1770/2009 15 cheque. That apart, the accused also failed to establish cogent evidence to rebut the presumptions also. Therefore, the revision petition fails and the same is liable to be dismissed. 25. Accordingly, the Revision Petition stands dismissed confirming the concurrent conviction and modified sentence imposed by the appellate court. The accused/revision petitioner is directed to surrender before the trial court within a period of seven days from today and on failure to do so, the trial court is directed to execute the sentence in accordance with law without fail. Registry shall forward a copy of this order to the courts below concerned for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_