Preethy Reji v. State of Kerala & Allianz Financial Corporation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 CRL.REV.PET NO. 683 OF 2022** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.71/2021 OF SESSIONS COURT, KOTTAYAM DATED 23.07.2022** **ST 1147/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,** ## **KOTTAYAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **PREETHY REJI, AGED 40 YEARS, W/O. REJI K.K., KUNNUMPRATHU HOUSE, KADASIKADAVU, PAMPUMPARA P.O., IDUKKI - 685551 BY ADVS. RAMESH .P FATHIMA NARGIS K.A.** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT :** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 2 ALLIANZ FINANCIAL CORPORATION, IGLOO GOWER, WEST TEMPLE ROAD, KOTTAYAM, REP. BY ITS SOLE PROPRIETOR, ASHY MATHEW, AGED 50 YEARS, S/O. MATHEW P. SCARIA, PALOOR PUTHENVEEDU, PUTHUPPALLY P.O., KOTTAYAM - 686011** **BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.10.2022, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:** 2 _Crl.R.P.No.68_ _**3** of 2022_ ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.68_ _**3** of 2022_ ================================ _Dated this the 27th day of October, 2022_ ## _**O R D E R**_ This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (`Cr.P.C’ for short) and the petitioner herein is the sole accused in S.T.No.1147/2019 on the file of the Judicial First Class Magistrate Court-II, Kottayam. The respondents herein are the State of Kerala as well as the original complainant before the trial court. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor on admission. 3. I shall refer the parties in this petition as `complainant’ and `accused’ for convenience. 4. Precise allegations in the complaint which led to cognizance in this matter are as under: 5. Complainant, who is the sole proprietor of Allianz Financial Corporation conducting chitty business, launched prosecution alleging commission of offence punishable under 3 _Crl.R.P.No.68_ _**3** of 2022_ Section 138 of the Negotiable Instruments Act (hereinafter will be referred as `N.I Act’ for convenience), when the cheque issued by the accused for Rs.56,875/- dated 08.01.2018 was returned being unpaid. The case put up by the complainant before the court below is that the husband of the accused one Reji.K.K was a subscriber to a chitty conducted by the complainant commenced on 2.3.2011 and ended after 30 months having sala of Rs.50,000/payable by 20 instalments @ Rs.2,500/-. Reji.K.K auctioned the chitty and he was given prize amount to the tune of Rs.34,000/on 28.06.2011 as per a cheque in the account of the complainant with Syndicate Bank, Kottayam Branch. 6. When the amount due from the above said Reji.K.K was defaulted, the accused herein, the wife of the said Reji.K.K, who stood as a guarantor, issued the said cheque to discharge the liability. This is the context in which the trial court took cognizance in this matter and proceeded with trial. 7. During trial, the trial court examined PW1 and marked Exts.P1 to P8 on the side of the complainant. Though accused was given opportunity to adduce evidence, after examining him under Section 313(1) (b) of Cr.P.C, he did not adduce any _Crl.R.P.No.68_ _**3** of 2022_ 4 evidence. The trial court appraised the evidence and finally convicted the accused for the offence punishable under Section 138 of the N.I Act and sentenced to undergo simple imprisonment till rising of court and to pay compensation of Rs.56,875/- and the same was ordered to be paid to the complainant. When the trial court’s verdict was challenged before the Sessions Court in CRA.No.71/2021, the appellate court also concurred with the conviction as well as the sentence. 8. Thus the concurrent verdicts of the trial court as well as the appellate court are under challenge in this revision petition. While impeaching the verdicts, it is argued by the learned counsel for the petitioner that the accused, a lady, without any job stood as a guarantor for the chitty transaction between her husband and the complainant and the complainant had been conducting chitty business without licence and the court below omitted to consider the said fact. In ground No.E it has been submitted that the revision petitioner/the accused is ready and willing to deposit the balance amount of 80% amounting to Rs.45,500/-, provided a breathing time would be granted. 9. In fact, nothing argued by the learned counsel for the 5 _Crl.R.P.No.68_ _**3** of 2022_ accused to unsustain the concurrent verdicts of the trial court by exercising power of revision available to this Court. 10. 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): _“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 scrutinizing 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 re-appreciating the oral evidence. ...”_ 6 _Crl.R.P.No.68_ _**3** of 2022_ 11. 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 sible. another view is pos Following has been laid down in para.14 (SCC p.135) : _“14. …... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration 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.”_ 12. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], _**Kishan Rao**_ 7 _Crl.R.P.No.68_ _**3** of 2022_ _**v. Shankargouda**_ . Thus the 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 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 13. On reading of the judgments of the courts below, it could be gathered that the complainant given evidence in support of the transaction which led to execution of Ext.P2 cheque and also Ext.P1 registration certificate in the name of the complainant who runs chitty business. Ext.P7 guarantee deed for chitty, wherein the accused was a guarantor also had been placed before the trial court along with Ext.P8 account statement showing the balance as on the date of issuance of the cheque. In fact, during 8 _Crl.R.P.No.68_ _**3** of 2022_ cross examination of PW1 nothing extracted to disbelieve the case of the complainant in any manner. Therefore, the courts below given emphasis to the evidence of PW1 and Exts.P1 to P8 and thereby imposed conviction and sentence. 14. It is settled law that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would be available to the complainant. 15. 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 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_ 9 _Crl.R.P.No.68_ _**3** of 2022_ _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.”_ 16. 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 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_ 10 _Crl.R.P.No.68_ _**3** of 2022_ _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.”_ 17. 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], _**M/S Kalamani Tex & 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 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-_ 11 _Crl.R.P.No.68_ _**3** of 2022_ _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.”_ 18. In this matter, on scrutiny of the judgments impugned, it could be seen that nothing available herein to interfere with the concurrent finding of the courts below by exercising power of revision. Therefore, the concurrent findings of conviction and sentence imposed by both courts below do not require any interference. 19. Accordingly, the Revision Petition is dismissed, while granting two months' time from today to the revision petitioner to pay the fine and to undergo the sentence imposed by the appellate court, as requested. Therefore, the execution of sentence shall 12 _Crl.R.P.No.68_ _**3** of 2022_ stand deferred till 26.12.2022. The revision petitioner shall appear before the trial court on 26.12.2022 to pay the fine or to undergo the default sentence. If the revision petitioner/accused fails to appear before the trial court, the trial court is directed to execute the sentence without fail. Registry is dircted to forward a copy of this order to the court below concerned for information. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_