Prasad.K. v. Sree Gokulam Chit and Finance Co. (P) Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **Crl.Rev.Pet.No.315 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRA 109/2018 DATED 04-11-2019 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE ORDER/JUDGMENT IN CC 33/2017 DATED 28-02-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS (SPECIAL COURT) FOR TRIAL OF SEC.138, NI ACT CASES** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PRASAD.K. AGED 47 YEARS S/O. DAYANANDAN K. S., NO.282(1850), KUNNEL HOUSE, 4 KUMBALANGI SOUTH P. O., KOCHI - 682 007, ERNAKULAM DISTRICT.** **BY ADV. SRI.K.BIJU** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **1 SREE GOKULAM CHIT AND FINANCE CO. (P) LTD. HAVING REGD. OFFICE AT KODAMBAKKAM, CHENNAI, REP. BY POWER OF ATTORNEY HOLDER MADHU V., AGED 40 YEARS, S/O. N. D. VIDYADHARAN, ASSISTANT BUSINESS MANAGER, ERNAKULAM BRANCH, 3RD FLOOR, SHERIN BUILDING, JOS JN., M. G. ROAD, ERNAKULAM - 16.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **SRI.C.K.PRASAD – PUBLIC PROSECUTOR.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.03.2020, THE COURT ON 12.03.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.315 OF 2020** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.315 of 2020 --------------------------------------------Dated this the 12[th] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.33/2017 on the file of the Court of the Judicial First Class Magistrate (N.I.Act cases), Ernakulam. 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 undergo simple imprisonment for a period of three months and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.Appeal No.109/2018 before the **Crl.Rev.Pet.No.315 OF 2020** **3** Court of Session, Ernakulam challenging the order of conviction and the sentence passed against him by the trial court. The appellate court confirmed the conviction of the petitioner under Section 138 of the Act but modified the substantive sentence of imprisonment imposed on him and reduced it to imprisonment till rising of the court. 4. 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. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant is a company conducting chitty business. The accused had subscribed to the chitty conducted by the complainant company. The accused bid the chitty and an amount of Rs.74,567/- was paid by the complainant to the accused. The accused made default in payment of the instalments of the chitty. When the complainant demanded the amount from the accused, **Crl.Rev.Pet.No.315 OF 2020** **4** the account was settled and the accused executed and issued a cheque dated 14.11.2016 for Rs.50,000/- to the complainant in discharge of the liability. 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 lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the power of attorney holder of the complainant company was examined as PW1 and Exts.P1 to P9 documents were marked on the side of the complainant. No evidence was adduced by the accused. 8. When examined as PW1, the power of attorney holder of the complainant company gave evidence regarding the chitty transaction and also issuing of the cheque by the accused to the complainant company in discharge of the amount which was due from him to the company in the chitty transaction. 9. The accused has no case that the cheque does not **Crl.Rev.Pet.No.315 OF 2020** **5** bear his signature. The evidence of PW1 is that the accused brought the filled up cheque and that the accused signed it in his presence. The evidence of PW1 is sufficient to prove the execution of the cheque and delivery of it by the accused to the complainant. 10. 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. No evidence was adduced by the accused to rebut the presumption under Section 139 of the Act. Nothing was also brought out in the cross examination of PW1 which would enable the accused to rebut the presumption. 11. The plea of the accused was that, at the time of joining the chitty, he had given signed blank cheques to the company and that the complainant has misused one of the aforesaid cheques and filed the case. No evidence was adduced by the accused to prove the aforesaid plea. 12. Learned counsel for the revision petitioner contended **Crl.Rev.Pet.No.315 OF 2020** **6** that the complainant did not produce any documents to show that the accused had subscribed to the chitty conducted by the complainant company and that amount was due from the accused to the complainant company in the chitty transaction. There is no merit in this contention. The accused did not dispute the fact that he had subscribed to the chitty conducted by the complainant company. He also did not dispute the fact that he had received the chitty amount from the complainant company. He did not adduce any evidence to prove that he repaid the entire amount due to the complainant company in the chitty transaction. Moreover, Ext.P4 ledger extract was produced by the complainant company to prove the amount which was due from the accused in the chitty transaction. 13. It is also relevant here to note that the accused did not send any reply to the statutory notice received by him from the complainant. 14. The trial court as well as the appellate court has appreciated the evidence and made concurrent findings. I find **Crl.Rev.Pet.No.315 OF 2020** **7** no illegality or impropriety or perversity in the appreciation of evidence by the courts below or the concurrent findings made against the petitioner. 15. The courts below have appreciated the evidence and made concurrent findings. 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 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** **Crl.Rev.Pet.No.315 OF 2020** **8** **3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 16. The appellate court has shown maximum leniency in awarding punishment to the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate court. 17. Consequently, the revision petition is dismissed. Conviction of the petitioner/accused 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 petitioner/accused by the appellate court is also confirmed. However, the petitioner/accused is granted a period of two months from today to remit the fine amount in the trial court. Sd/- ## **R.NARAYANA PISHARADI, JUDGE** al/-