Prasanna S. Nair v. Aneesha A.U and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 CRL.REV.PET NO. 817 OF 2023** **AGAINST THE ORDER/JUDGMENT IN ST 413/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -X, THIRUVANANTHAPURAM CRA 126/2022 OF DISTRICT COURT & SESSIONS COURT,** **THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PRASANNA S. NAIR AGED 58 YEARS D/O BHAVANI AMMA, 'SAROJ', GROUND FLOOR, BUILT TECH, KARAKKAMANDAPAM, NEMOM P.O. THIRUVANANTHAPURAM, PIN - 695020** **BY ADVS. M.M.BABY JOHNY K. JOHN J.P.SANDHYA** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 ANEESHA A.U D/O USHA, T.C. 20/1109, A.U. BHAVAN, MNRA - 37, KARAMANA, THIRUVANANTHAPURAM, PIN - 695002** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **SRI. RENJITH GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 817 OF 2023** **2** ## **O R D E R** Dated this the 18[th] day of August, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for convenience), challenging judgment in S.T.No.413/2016 dated 19.07.2022 on the files of the Judicial First Class Magistrate Court-X, Thiruvananthapuram and also in Crl.A.No.126/2022 dated 12.04.2023 on the files of the Sessions Court, Thiruvananthapuram. 2. The revision petitioner is the sole accused in the above case. The respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 4. I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 5. The brief facts of the case: The accused, who had acquaintance with the **CRL.REV.PET NO. 817 OF 2023** **3** complainant, borrowed Rs.5,50,000/- (Rupees five lakh fifty thousand only) and in repayment of the said sum, she had issued Exts.P1 and P2 cheques for Rs.3,00,000/- and Rs.2,50,000/- respectively. But when the cheques were presented for collection, the same were returned with endorsement “funds insufficient”. Soon after the dishonor, legal notice was issued demanding the said amount. Since the amount was not paid , the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter). 6. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 was examined and Exts.P1 to P6 and X1 series marked on the side of the complainant. 7. Although opportunity was given to the accused to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C., no witnesses examined and **CRL.REV.PET NO. 817 OF 2023** **4** Exhibits marked on the side of the defence. 8. However, on appreciation of evidence, after hearing both sides, the learned Magistrate found that the accused committed the offence punishable under Section 138 of the NI Act. Accordingly, he was sentenced to undergo simple imprisonment for three months and to pay fine of Rs.5,50,000/(Rupees five lakh fifty thousand only) for the offence punishable under Section 138 of the NI Act. The amount of fine was ordered to be paid as compensation to the complainant under Section 357(1) of Cr.P.C. In default of payment of fine, simple imprisonment for one month also was imposed. 9. Aggrieved by the judgment of the Judicial First Class Magistrate Court-X, Thiruvananthapuram, the revision petitioner filed appeal before the Sessions Court, Thiruvananthapuram and on re-appreciation of evidence, the learned Sessions Judge modified and reduced the sentence to simple imprisonment till the rising of the court and to pay a fine **CRL.REV.PET NO. 817 OF 2023** **5** of Rs.5,50,000/- and imposed one month simple imprisonment, on failure to pay fine. 10. Thus, the concurrent verdicts of conviction imposed by the trial court as well as the appellate court and the modified sentence imposed by the appellate court are under challenge in this revision petition. While challenging the concurrent verdicts of conviction and sentence, the learned counsel for the revision petitioner submitted that the complainant failed to disclose the nature of friendship existed in between the complainant and the accused so as to advance Rs.5,50,000/-. It is also submitted that Rs.1,50,000/- paid during pendency of this Court during mediation. 11. Even though the learned counsel for the revision petitioner reiterated the contentions before the trial court, it is discernible from the judgments under challenge that the accused herein admitted issuance of cheques towards a liability. But he did not disclose what was the amount received at the time issuance of Ext.P1 cheque. Serious challenge **CRL.REV.PET NO. 817 OF 2023** **6** raised before the appellate court regarding the source of the complainant to advance the amount and the appellate court rightly held that PW1 has been employed in Infosys and getting fair sum and therefore, her source also need not to be doubted. 12. 11. In fact, the courts below relied on the evidence of PW1 and Exts.P1 to P6 and X1 series to hold that transaction as well as the execution of the cheques stood proved. Thus, it appears that no valid contention raised to revisit the concurrent findings of the trial court. 13. 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; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda,** are on this point. **CRL.REV.PET NO. 817 OF 2023** **7** 14. In this case, the evidence of PW1 supported by Exts.P1 to P6 and X1 series, 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. 15. 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 : (2019) 4** **CRL.REV.PET NO. 817 OF 2023** **8** **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. 16. In the result, this revision petition fails and is accordingly dismissed. 17. However, in consideration of the request of the learned counsel for the revision petitioner to grant six months' time, I am inclined to grant four months' time from today to pay the fine amount. The revision petitioner shall appear before the trial court on 16.12.2023 to pay the fine amount or to undergo the default sentence. Execution of the sentence stands **9** ## **CRL.REV.PET NO. 817 OF 2023** deferred till 15.12.2023. If the revision petitioner/accused fails to appear before the trial court, as directed, trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. **Sd/A. BADHARUDEEN JUDGE** nkr