PRABHAKARAN.T.V v. STATE OF KERALA & THERESA ALEX

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** **Crl.Rev.Pet.No.99 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRA 149/2019 DATED 19-12-2019 OF DISTRICT & SESSIONS COURT, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN ST 48/2016 DATED 06-06-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV,CHERTHALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PRABHAKARAN.T.V AGED 68 YEARS THAYILPARAMBIL HOUSE,ARTHINKA.P.O, CHERTHALA.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN-682031.** **2 THERESA ALEX, AGED 56 YEARS W/O ALEX ABRAHAM,THATTUPARAMBIL,NEW DALE,CMC25,KOTTALA ROAD, CHERTHALA,PIN-688524.** **SRI.C.K.PRASAD PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON 03.02.2020 PASSED THE FOLLOWING:** Crl.R,P.No.99/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.99 of 2020 ---------------------------------------------Dated this the 3[rd] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.48/2016 on the file of the Court of the Judicial First Class Magistrate-IV, Cherthala. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced the petitioner to imprisonment till the rising of the court and also to pay a fine of Rs.3,18,712/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. The trial court also directed that, if the fine amount was realised, it shall be paid to the complainant as compensation. 3. The petitioner filed Crl.A.No.149/2019 before the Crl.R,P.No.99/2020 3 Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. During the pendency of the appeal, the complainant died. His wife was permitted to continue the prosecution against the accused and she was impleaded as additional third respondent in the appeal. 4. The appellate court confirmed the conviction of the petitioner under Section 138 of the Act but reduced the sentence of fine to Rs.2,50,000/-. 5. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 6. Heard learned counsel for the revision petitioner. 7. The case of the complainant was as follows: The complainant and the accused were friends. On 01.09.2014, the accused borrowed Rs.2,50,000/- from the complainant. On the same day, the accused issued a cheque dated 01.11.2014 for Rs.2,50,000/- to the complainant in discharge of the liability, on the promise that the cheque can be encashed after two months. Crl.R,P.No.99/2020 4 The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount of the cheque. 8. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P5 documents were marked on his side. No evidence was adduced by the accused. When examined as PW1, the complainant gave evidence that, on 01.09.2014, the accused borrowed an amount of Rs.2,50,000/from him and on the same day, the accused issued Ext.P1 cheque dated 01.11.2014 for that amount in discharge of the liability. 9. The plea of the accused was that the complainant was conducting an establishment by name 'Kerala Bankers' and when he (the accused) was in need of money, he had pledged two gold bangles and chain for an amount of Rs.1,00,000/- and since the security was not sufficient, the complainant demanded two cheques from him and he gave two cheques. It is the further Crl.R,P.No.99/2020 5 plea of the accused that the complainant misused one of the aforesaid cheques and filed the complaint. 10. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out in the crossexamination of PW1 to find that, during any transaction between him and the complainant, he had given any cheque as security. 11. The evidence of PW1 proves execution of Ext.P1 cheque by the accused. Once execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. The accused failed to rebut the presumption in any manner. 12. Learned counsel for the petitioner, relying upon the observations made by the trial court in its judgment, would contend that PW1 had admitted that the accused had transaction with 'Kerala Bankers'. Even if it is accepted that the accused had any transaction with 'Kerala Bankers', which was owned by the complainant, there is nothing to prove that the accused had given any cheque as security in any such transaction. Crl.R,P.No.99/2020 6 13. The accused had received the notice sent to him by the complainant. The accused did not send any reply. If as a matter of fact, he had not borrowed Rs.2,00,000/- from the complainant and if he had not issued the cheque in discharge of that liability, the accused would have definitely sent a reply to the notice. The very fact that the accused did not send any reply to the statutory notice leads to the inference that the version of the complainant is true. 14. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose 7 Crl.R,P.No.99/2020 decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 15. The appellate court has imposed only a sentence of imprisonment till the rising of the court and a fine of Rs.2,50,000/-, which is equivalent to the amount of the cheque, on the petitioner/accused. There is no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate court. 16. Consequently, the revision petition is dismissed. Conviction of the petitioner for the offence under Section 138 of the Act by the trial court, which stands affirmed by the appellate court, is confirmed. The sentence imposed on the 8 Crl.R,P.No.99/2020 petitioner/accused by the appellate court is also confirmed. If the fine amount of Rs.2,50,000/- (Rupees two lakhs fifty thousand only) is paid or realised, it shall be given as compensation to the wife of the complainant who was impleaded as additional third respondent in the appeal. The petitioner/accused is granted a period of five months from today to remit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr