P.N.M Hospital and Gopinatha Panicker v. State of Kerala and Ananda Surgical Medical College

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 CRL.REV.PET NO. 195 OF 2022 ``` ``` CRA 43/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, THIRUVANANTHAPURAM ST 225/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -VIII, ``` ## **`THIRUVANANTHAPURAM`** ## **`REVISION PETITIONERS/APPELLANTS/ACCUSED:`** ``` 1P.N.M HOSPITAL KATTAKKADA, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING PARTNER, PIN - 695543 2GOPINATHA PANICKER AGED 68 YEARS MANAGING PARTNER M/S.P.N.M HOSPITAL, KATTAKKADA, THIRUVANANTHAPURAM, PIN - 695543 BY ADVS. GOVIND PADMANAABHAN SHINOD.G.P AJIT G ANJERLEKAR ATUL MATHEWS ``` ## **`RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2ANANDA SURGICAL MEDICAL COLLEGE P.O, THIRUVANANTHPURAM REPRESENTED BY ITS MANAGING PARTNER S.MURUGADAS, PIN - 695011 R1 BY SR.PUBLIC PROSECUTOR SRI.P.G.MANU R2 BY ADV M.SREEKUMAR M ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **`CRL.REV.PET NO. 195 OF 2022`** 2 ## **ORDER** Dated this the 9[th] day of August, 2023 This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter). Revision petitioners are accused Nos.1 and 2 in S.T.No.225/2012, on the files of the Judicial First Class Magistrate Court – VIII, Thiruvananthapuram. They impugn the said judgment as well as the judgment in Crl.A.No.43/2018, dated 3.9.2021, arising therefrom. 2. The respondents herein are State of Kerala as well as the original complainant. 3. Heard the learned counsel for the revision petitioners as well as the learned Public Prosecutor. 4. I shall refer the parties in this Revision Petition as to their status before the trial court as `complainant' and `accused'. 5. Pursuant to dishonour of cheque for Rs.13,87,198/(Rupees Thirteen Lakh Eighty Seven Thousand One Hundred and Ninety Eight only), dated 15.9.2009, the complainant initiated prosecution against the accused, alleging commission **`CRL.REV.PET NO. 195 OF 2022`** 3 of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for short). 6. The court below secured the presence of the accused for trial and recorded evidence. The evidence confined to that of PW1 and PW2 and Exts.P1 to P7 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 them, to adduce defence evidence. But, no defence evidence adduced. 7. The trial court appreciated the evidence, based on arguments tendered by both sides and finally convicted the accused for the offence punishable under Section 138 of the NI Act and the 2[nd] accused was sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.25,52,444/- (Rupees Twenty Five Lakh Fifty Two Thousand Four Hundred and Forty Four only) by both the accused to the complainant under Section 357(3) of the Cr.P.C. In default of payment of compensation, simple imprisonment for a period of three months also was imposed on the 2[nd] accused. The accused challenged the order of trial court before the Sessions Judge, Thiruvananthapuram in Crl.Appeal **`CRL.REV.PET NO. 195 OF 2022`** 4 No.43/2018. As per judgment, dated 3.9.2021, the learned Sessions Judge also confirmed the finding of the trial court and dismissed the appeal. 8. In this matter, the learned counsel for the accused reiterated the defence put up before the trial court as well as appellate court on the premise that, the cheque was issued to the complainant, when the accused maintained good financial and business relationship between them, for the purpose of enhancing the credit facility of the complainant. This contention was addressed by the trial court in paragraph No.13 of the judgment and it was observed by the learned Magistrate that this contention is not digestible to prudence, since by issuing a blank cheque of the accused, it is not possible to enhance credit facility of the complainant, in any manner. It is also noted by the trial court that, on getting demand notice, no reply also sent and the accused kept silence on getting the notice. The same contention reiterated by the appellate court and the appellate court also found the said contention against the accused. No doubt, the courts below rightly observed that the defence case is not at all probable. **`CRL.REV.PET NO. 195 OF 2022`** 5 9. In the case at hand, the specific case of the complainant is that, the 2[nd] accused, for and on behalf of the 1[st] accused, had issued a cheque for Rs.13,87,198/- (Rupees Thirteen Lakh Eighty Seven Thousand One Hundred and Ninety Eight only), drawn on State Bank of Travancore, Thiruvananthapuram branch, dated 15.9.2009, towards the price of the medical disposables purchased by them from the complainant. In order to prove the said case, the complainant got examined as PW1 and another person from the company also examined as PW2. A copy of the deposition of PW1 and PW2 have been made available by the learned counsel for the accused. The same would go to show that, no serious cross examination effected to shake the version of PW1 and PW2, though it is submitted by the learned counsel for the accused that PW2 did not understand English and therefore, Ext.P7 statement of account produced, at his instance, is a matter not known to him. In fact, Leger account statement is a book maintained by the complainant and PW2, being the authorized person, simply produced the same before the court, showing the liability as on the date of the cheque as Rs.13,87,198/(Rupees Thirteen Lakh Eighty Seven Thousand One Hundred **`CRL.REV.PET NO. 195 OF 2022`** 6 and Ninety Eight only) and therefore, this contention cannot be appreciated at all. 10. As I have already pointed out, in this case, the evidence of PW1, supported by PW2 and Exts.P1 to P7, 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. 11. 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 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 :** **`CRL.REV.PET NO. 195 OF 2022`** 7 **(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. 12. In fact, the learned counsel 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. 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;** **`CRL.REV.PET NO. 195 OF 2022`** 8 **[(2018) 8 SCC 165], Kishan Rao v. Shankargouda** , are on this point. 13. Considering the matter within the limited power of revision, nothing substantiated to unsettle the concurrent verdicts in any manner. Therefore, this revision fails. However, considering the request of the learned counsel for the accused, I am inclined to grant one month time from today, to the accused to pay the compensation and therefore, imposing of sentence shall stand deferred till 7.9.2023 and the 2[nd] accused is directed to appear before the trial court on 8.9.2023, either to pay the fine amount or to undergo the default sentence. If the 2[nd] 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