P.K. KUNJUMON v. P.K. MATHEW & STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 ``` ``` CRL.REV.PET NO. 751 OF 2022 ``` ``` ST.NO.66/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, ``` ## **`ETTUMANUR`** ``` CRL.A.NO.108/2021 OF ADDITIONAL SESSIONS COURT - I, KOTTAYAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` P.K. KUNJUMON AGED 59 YEARS AKHIL NIVAS, ETTUMAMOOR P.O., KANNARAMUKALIL, KOTTAYAM PIN - 686562 BY ADVS. VIJAI MATHEWS JOSEPH THEKKEKURUVANAL ``` ## **`RESPONDENTS/RESPONDENT/COMPLAINANT & STATE:`** ``` 1P.K. MATHEW PLATHOTTATHIL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM PIN - 686562 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PIN – 682031 R2 BY PP-SRI.G.SUDHEER ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 751 OF 2022 2 ``` ## ORDER This revision has been filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C’ hereinafter), challenging judgment in S.T.No.66/2012, dated 30.10.2021 on the file of the Judicial First Class Magistrate Court - II, Ettumanoor and also the judgment in Crl.Appeal No.108/2021 on the file of the Additional Sessions Court – 1, Kottayam. 2. The revision petitioner is the accused in the above case. 3. The respondents herein are the original complainant as well as the State of Kerala. 4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor, on admission. Notice to the first respondent stands dispensed with. 5. I shall refer the parties as ‘complainant’ and ‘accused’, for convenience. 6. Bereft of unnecessary details, the case put up by the complainant before the trial court is as under: The complainant launched prosecution alleging commission of offence under ``` CRL.REV.PET NO. 751 OF 2022 3 ``` Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter), when cheque for Rs.1,20,000/- (Rupees One Lakh Twenty Thousand only) dated 18.5.2012, allegedly issued by the accused to the complainant was dishonoured when the same was presented for collection, for want of funds. 7. The court below secured the presence of the accused for trial and during trial, PW1 was examined and Exts.P1 to P8 were marked on the side of the complainant. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence. Accordingly, DWs 1 to 3 were examined and Exts.D1 to D2 and Ext.C1 were marked on the side of the defence. 8. Earlier, the trial court found that the accused committed offence punishable under Section 138 of the NI Act and accordingly, he was convicted. But the said conviction was challenged before the Sessions Court, Kottayam, by filing Crl.Aappeal No.126/2016. The learned Sessions Judge set aside the conviction and sentence and remanded the matter back to the trial court, by giving opportunity of the accused to examine the Scientific Assistant also. 9. Thereafter, DW3 was examined. The court below given emphasis to the evidence of PW1 and Ext.P1 to hold that the complainant discharged his initial ``` CRL.REV.PET NO. 751 OF 2022 4 ``` burden in the matter of transaction which led to execution of Ext.P1 cheque. The court below also negatived the contention raised by the accused that Ext.P1 is a blank signed cheque issued by the accused to the mother of the complainant, who was examined as DW1 as one mentioned in Ext.D1. Finally, the trial court again convicted the accused as per judgment, dated 30.10.2021. The said conviction was challenged before the appellate court in Crl.Appeal No.108/2021 and the learned Appellate Judge also confirmed the conviction by modifying the sentence for a day till rising of the court. 10. The learned counsel for the accused argued at length to convince this Court that the evidence of DW1 and PW1 in the matter of issuance of Ext.P1 cheque would probabilise the case of the accused and the courts below ought to have disbelieved the case of the complainant and appraised the case put up by the accused. According to the learned counsel for the accused, in this matter, during cross examination, PW1 given evidence that there was no financial transaction between the accused and his mother. But later, when the mother was examined as DW1, she had admitted Ext.D1, receipt issued by her, in her own handwriting and also acceptance of a blank signed cheque issued by the accused at the time of Ext.D1 transaction. According to the learned counsel for the accused, though the evidence of DW1 and Ext.D1 is to the effect that a blank signed cheque was ``` CRL.REV.PET NO. 751 OF 2022 5 ``` given by the accused to DW1, DW1 produced Ext.D2 cheque with date and the amount written both in letters and figures. That apart, PW1 and DW1 given evidence before the trial court that Exts.P1 and D2 cheques were written by the accused. It is in this context, the accused obtained a scientific expert opinion. DW3, who was examined to prove Ext.C1 - FSL report given evidence that he could not say the authorship of the writings in Ext.P1 or Ext.D2 . Therefore, the probability is in favour of the accused and therefore, the concurrent verdicts would require interference. 11. Going by the grounds raised in the revision petition, in fact, those are matters to be decided on appreciation of evidence and the said power is not available to this Court while exercising revision. 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. In 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): ``` CRL.REV.PET NO. 751 OF 2022 6 ``` “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 to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …” 13. 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 ## `CRL.REV.PET NO. 751 OF 2022 7` 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 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.” 14. The said ratio has been followed in a latest decision of the Supreme . Thus the Court reported in [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda**_ 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 ``` CRL.REV.PET NO. 751 OF 2022 8 ``` otherwise, if there is non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 15. However, the learned counsel for the accused placed copies of depositions of PW1, DW1, Exts.D1, P1 and D2. The specific evidence given by DW1, the mother of the complainant was that she had issued Ext.D1 and she acknowledged receipt of a blank signed cheque as on 10.2.2012 for the transaction shown in Ext.D1. But, during further cross examination, DW1 stated that on 3.3.2012, the accused borrowed Rs.10,000/- more from DW1 and at the time of this transaction, the blank cheque referred in Ext.D1 was returned to the accused and in turn, the accused issued a cheque for Rs.80,000/- dated 3.3.2012. Ext.D2 is the cheque so issued. The said evidence of DW1 is not shown in any manner. Therefore, the courts below given emphasis to the evidence of DW1 to negate the case put up by the accused. 16. In this matter, the specific case put up by the accused before the trial court as well as the appellate court was that, he had issued one and only cheque in favour of the mother and the same was misused. But during evidence of DW1, the mother, she had produced another cheque issued by the accused from the same account number. So, it has to be held that the case put up by the accused ``` CRL.REV.PET NO. 751 OF 2022 9 ``` to the effect that he had given one and only cheque to the mother, is not believable, since evidently two cheques issued from the same account of the accused, are before the court. 17. The legal position is not in dispute insofar as proof of offence punishable under Section 138 of the NI Act is concerned. 18. It is a settled law that once the complainant discharges his initial burden in the matter of transaction led to execution of cheque, the complainant would get benefit of twin presumptions under Sections 118 and 139 of the N.I Act. The law is settled on this point. No doubt, the accused can rebut these presumptions by convincing evidence. 19. 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 under Section 138 of the N.I Act and held as under: “The presumption mandated by S.139 of the Act 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 ## `CRL.REV.PET NO. 751 OF 2022 10` 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 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.” 20. 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 ``` CRL.REV.PET NO. 751 OF 2022 11 ``` ## 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 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.” 21. 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], _**Kalamani Tex (M/s.) & 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.REV.PET NO. 751 OF 2022 12` 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 2nd 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 issued in discharge of a debt.” 22. In the instant case, in fact, the accused failed to rebut the presumptions. The case advanced by the accused found to be not believable. Therefore, the concurrent verdicts of conviction and the modified sentence rendered by the appellate court, do not require any interference and therefore, the revision fails. ``` CRL.REV.PET NO. 751 OF 2022 13 ``` 23. Faced with the situation, the learned counsel for the revision petitioner sought for six month’s time to pay the amount. Considering the request of the learned counsel for the revision petitioner, I am inclined to grant one month time from today, to pay the fine amount and therefore, execution of of sentence shall stand deferred till 12.1.2023 and the accused is directed to appear before the trial court on 13.1.2023, either to pay the fine amount or to undergo the default sentence. If the accused fails to appear as directed, the trial court is directed to execute the sentence, as per law. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- A. BADHARUDEEN JUDGE Bb //TRUE COPY// PA TO JUDGE