P.K GIRIJA and SANKARA NARAYANAN v. PRAVEEN RAJ and STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 CRL.REV.PET NO. 782 OF 2023 CRA 277/2022 OF ADDITIONAL SESSIONS COURT-1, KOZHIKODE ST.NO.314/2017 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (NI ACT ``` ## **`CASES), KOZHIKODE`** ## **`REVISION PETITIONERS/APPELLANTS/ACCUSED NO.1 AND 2:`** ``` 1P.K GIRIJA AGED 55 YEARS W/O. SANKARA NARAYANAN, SREEVALSAM, FEROKE P.O, KOZHIKODE, PIN - 673631 2SANKARA NARAYANAN AGED 61 YEARS S/O. VELAYUDHAN, SREEVALSAM, FEROKE P.O, KOZHIKODE, PIN - 673631 BY ADV S.K.SAJU ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1PRAVEEN RAJ AGED 41 YEARS S/O. VALSARAJ, RAJGEETH ENTERPRISES, RICE CANVASSING AND COMMISSION AGENT, 3RD FLOOR, AHAMMED BUILDING, CHEROOTTY ROAD, KOZHIKODE, PIN - 673001 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,PIN – 682031 ``` ``` R2 BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.08.2023, THE COURT ON 10.8.2023, DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 782 OF 2023 2 ``` ## **ORDER** Dated this the 10[th] day of August, 2023 This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter). The revision petitioners are accused Nos.1 and 2 in S.T.No.314/2017, on the files of the Special Judicial First Class Magistrate Court, (N.I.Act Cases), Kozhikode. The petitioners impugn the said judgment as well as the judgment in Crl.Appeal.No.277/2022 along with Crl.R.P.No.58/2022, dated 12.7.2023, arising therefrom. 2. The case put up by the complainant before the trial court was that, in connection with the engagement of the daughter of accused Nos.1 and 2, they borrowed a sum of Rs.1,90,000/- (Rupees One Lakh Ninety Thousand only) from the complainant on 7.9.2015 and agreed to repay the same within one year and the 1[st] accused executed an agreement in this regard on 7.9.2015 itself. Since the 1[st] accused failed to pay the amount as ## **`CRL.REV.PET NO. 782 OF 2023 3`** agreed, the complainant demanded the money and in pursuance thereof, accused Nos.1 and 2 jointly executed cheque for Rs.1,90,000/- (Rupees One Lakh Ninety Thousand only), dated 3.9.2016, after ensuring that the cheque would be honoured on presentation for collection. But, when the cheque was presented for collection, the same got dishonoured for want of funds. Although notice of demand was issued, the accused did not repay the amount, but sent reply, raising false contentions. It is on this premise, complainant initiated prosecution against the accused, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `the N.I Act', for short). 3. The trial court took cognizance of this matter and secured the presence of the accused for trial. During trial, PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant. After conclusion of the prosecution evidence, the accused was given opportunity to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C. Making use of the said opportunity, DW1 and DW2 were examined and Exts.D1 to D3 series were marked on the side of defence. ## **`CRL.REV.PET NO. 782 OF 2023 4`** 4. The trial court appreciated the evidence, based on arguments tendered by both sides and finally convicted accused Nos.1 and 2 for the offence punishable under Section 138 of the NI Act and sentenced to pay a fine of Rs.2,57,400/- (Rupees Two Lakh Fifty Seven Thousand Four Hundred only) jointly and severally and the fine was ordered to be given as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. In default of payment of fine, simple imprisonment for a period of two months each, also was imposed. When the accused challenged the conviction and sentence imposed by the trial court before the appellate court, the appellate court considered the appeal along with Crl.R.P.No.58/2022 and dismissed the appeal as well as the revision petition, confirming the conviction and sentence imposed by the trial court, as per judgment, dated 12.7.2023. 5. In fact, the learned counsel miserably failed to substantiate anything to re-visit the concurrent verdicts 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 ## **`CRL.REV.PET NO. 782 OF 2023 5`** 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. 6. While assailing the legality of the conviction and sentence imposed by the trial court and confirmed by the appellate court, the learned counsel for the accused reiterated the contentions raised before the trial court and submitted that, the case advanced by the complainant is incorrect and the accused put up a probable defence, alleging that the 1[st] accused borrowed Rs.1,55,000/- (Rupees One Lakh Fifty Five Thousand only) and the daughter of accused Nos.1 and 2 borrowed Rs.45,000/- (Rupees Forty Five Thousand only) from the complainant for the purpose of the marriage of the daughter. During this transaction, the complainant obtained 3 blank cheques, one signed by the 1[st] accused, another signed by accused Nos.1 and 2 and another signed by their daughter, Babitha. Eventhough the 1[st] accused and Babitha repaid Rs.4,00,000/- (Rupees Four Lakh only) covered ## **`CRL.REV.PET NO. 782 OF 2023 6`** by the said liability, the complainant failed to issue any receipt. Further, the complainant was reluctant to return the cheques and by misusing one among the cheques, the present prosecution was launched. In this matter, the accused strongly resisted the contentions of the complainant, on the basis of the said defence case and during examination of DW2, the 2[nd] accused, Ext.D3 series, documents were tendered in evidence, alleging that, those are receipts issued by the complainant for the amount paid by them towards the liability of Rs.2 Lakh. The appellate court discussed the evidentiary value of Ext.D3 series and held that, at the time of examining DW1, no such documents produced. It is relevant to note that when the complainant was examined, Ext.D3 series were not let in evidence to confront the same to PW1 and at a later point of time, those receipts were produced and the authenticity of the same were denied by the complainant. Therefore, no credence could be given to the said documents. It was also opined by the appellate court that the reason stated for non-production of Ext.D3 by DW2 to the effect that he was under the belief that the documents had no evidentiary value, also could not be accepted. ## **`CRL.REV.PET NO. 782 OF 2023 7`** 7. In this case, the complainant’s case is that, Rs.1,90,000/was borrowed by the 1[st] accused and in repayment of the said sum, Ext.P1 cheque was issued jointly by accused Nos.1 and 2. The accused did not deny the transaction with the complainant and they admitted the transaction, contending that Rs.1,55,000/(Rupees One Lakh Fifty Five Thousand only) was received from the 1[st] accused and Rs.45,000/- (Rupees Forty Five Thousand only) was received from the daughter of the 1[st] and 2[nd] accused. The further case of the accused is that, for the repayment of the said amount, 3 blank cheques were issued and one among the blank cheques issued by accused Nos.1 and 2 during the said transaction, has been misused for the purpose of this case. At the same time, the accused raised contention that Rs.4,00,000/(Rupees Four Lakh only) was repaid and the liability in regard to the admitted transaction, as contended by the accused, was discharged. 8. In this matter, it is relevant to note that, as per the case put forward to the accused, they have borrowed Rs.1,55,000/(Rupees One Lakh Fifty Five Thousand only) and Rs.45,000/(Rupees Forty Five Thousand only), after issuance of 3 cheques. ## **`CRL.REV.PET NO. 782 OF 2023 8`** The further contention is that, they have discharged the liability, without getting back the cheques. The same appears to be not believable. In fact, when the plea is discharge, the same must be proved by the accused with the aid of convincing evidence. Therefore, the discharge with regard to the admitted liability of the accused also, is not established in any manner. 9. In fact, the courts below correctly appreciated and reappreciated the evidence to hold that evidence given by the complainant as PW1 supported by Exts.P1 to P5, satisfactorily discharged the initial burden cast upon the complainant in the matter of transaction which led to execution of the cheque and accordingly, the benefit of twin presumptions under Sections 118 and 139 of the NI Act was given to the complainant. Accordingly, the accused was convicted and sentenced. 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 ## **`CRL.REV.PET NO. 782 OF 2023 9`** 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** . 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. To sum up, nothing substantiated by the accused to unsettle the concurrent verdicts, in any manner. Therefore, this revision fails and is accordingly dismissed. ## **`CRL.REV.PET NO. 782 OF 2023 10`** 12. Considering the request of the learned counsel for the revision petitioner, I am inclined to grant two months’ time from today, to the accused to pay the fine amount. Therefore, execution of the sentence shall stand deferred till 8.10.2023 and the accused is directed to appear before the trial court on 9.10.2023, either to pay the fine amount or to undergo the default sentence. 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** Bb