Premjithlal V.P. v. Peter John Aswez and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA,** ## **1944** **CRL.REV.PET NO. 1 OF 2022 AGAINST THE JUDGMENT DATED 28.09.2021 IN CRA 162/2019 OF ADDITIONAL SESSIONS JUDGE-V, ERNAKULAM JUDGMENT DATED 08.05.2019 IN CC 284/2015 OF JMFC(SPECIAL COURT) FOR TRIAL OF SEC.138, NI ACT CASES, ERNAKULAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** PREMJITHLAL V.P., AGED 36 YEARS, S/O. PUSHPALAL, VENGATTU HOUSE, VADUTHALA P.O., KOCHI 682 023. BY ADV K.R.VINOD ## **RESPONDENTS/RESPONDENTS/COMPLAINANTS:** 1 PETER JOHN ASWEZ, AGED 44 YEARS, S/O.P.A.JOHN, PUNIKKARU PARAMBIL HOUSE, KUNNUMMEL ROAD, VADUTHALA P.O., KOCHI 682 023. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, DISTRICT COURT, ERNAKULAM. BY ADVS. T.K.ABRAHAM PRAMOJ ABRAHAM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.12.2022, THE COURT ON 19.12.2022 DELIVERED THE FOLLOWING: Crl.R.P No.1/2022 2 _**`C.R.'**_ ## _**A. BADHARUDEEN, J.**_ _================================ Crl.R.P No.1 of 2022_ ================================ _Dated this the 19[th] day of December, 2022_ ## _**O R D E R**_ This revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' is at the instance of the sole accused in C.C.No.284/2015 on the file of the Judicial First Class Magistrate Court (N.I Act Cases), Ernakulam. 2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court (N.I Act Cases), Ernakulam, in the above case dated 08.05.2019, modified by the Additional Sessions Judge-V, Ernakulam in Crl.Appeal No.162/2019 dated 28.09.2021. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4. I shall refer the parties in this Revision Petition as Crl.R.P No.1/2022 3 `complainant' and `accused' for convenience. 5. The complainant filed prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act' for short) when cheque for Rs.3 lakh dated 25.09.2012, issued by the accused to the complainant towards discharge of the sum alleged to be borrowed from the complainant on 25.08.2012, was dishonoured. 6. The trial court secured the presence of the accused for trial. During trial, PW1 and PW2 examined and Exts.P1 to P7 were marked on the side of the complainant. 7. The accused was questioned under Section 313(1)(b) of Cr.P.C and thereafter, he was given opportunity to adduce defence evidence, he did not adduce any evidence. 8. Trial court appraised the evidence in detail and finally convicted the accused for the offence punishable under Section 138 of the N.I Act and sentenced to undergo simple imprisonment for a period of 3 months and to pay fine of Rs.3 lakh. 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 Crl.R.P No.1/2022 4 imprisonment for one month also was imposed. The said verdict was challenged before the Sessions Court and the learned Additional Sessions Judge, on re-appraisal of the evidence confirmed the conviction and finally modified the sentence to imprisonment till the rising of the court and and to pay fine of Rs.3 lakh and in default of payment of fine, to undergo simple imprisonment for a period of 3 months. The fine imposed was ordered to be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. 9. While impeaching the veracity of the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the revision petitioner pointed out 2 anomalies in this case. The first point argued is that Ext.P1 cheque when presented for collection, the same returned with endorsement “account dormant”. According to the learned counsel for the accused, when a cheque is dishonoured for the reason `account dormant', it could not be held as dishonour of cheque for want of funds and also it could not be inferred that the cheque was dishonoured for non availability of funds in the account. Crl.R.P No.1/2022 5 Therefore, it is the duty of the complainant to prove that there was no amount in the account of the accused to encash the cheque at the time of its presentation. 10. The second point argued by the learned counsel for the accused is that though Ext.P7 statement of accounts for the period from 24.09.2012 to 05.10.2012 pertaining to the bank account of the accused had been let in evidence by examining PW2, to prove that there was no balance in the said account to honour Ext.P1 cheque, Ext.P7, a computer generated document, was let in evidence without a certificate as mandated under Section 65B of the Evidence Act. Therefore, Ext.P7 is inadmissible in evidence. Accordingly, Ext.P7 cannot be given emphasis to hold that there was no money in the account of the accused at the relevant time of presentation of the cheque for collection. 11. Per contra it is zealously argued by the learned counsel for the complainant that when the cheque got dishonoured for the reason `account dormant', the same is akin to return of cheque for want of funds and, therefore, the argument at the instance of the learned counsel for the accused could not be countenanced. The Crl.R.P No.1/2022 6 learned counsel further argued that Ext.P7 clearly established the fact that, at the time of dishonour of the cheque, there was no amount in the account of the accused to honour the cheque. He also argued that PW2, the Deputy Manager, who had been examined in support of Ext.P7, given evidence otherwise that there was zero balance in the account at the time of presentation of the cheque. Therefore, the said evidence should have predominance over Ext P7. 12. While appraising the first contention, it is relevant to refer the decision of the Apex Court reported in [(2012) 13 SCC 375], _**Laxmi Dyechem (M/s.) v. State of Gujarat & Ors.**_ , where it has been held that if the cheque is dishonoured with endorsement `signatures do not match', the said endorsement is the species of the genus, `amount of money in account is insufficient'. Thus it has to be held when cheque returned unpaid, on presentation for collection, noting any reasons other than `funds insufficient' in the account of the drawer/payer of the cheque, the said reasons are the species of the genus, `amount of money in account is insufficient'. If the above legal proposition is applied to the facts Crl.R.P No.1/2022 7 of the case, can it be said that, when a cheque was dishonoured for the reason `account dormant', the same is not akin to dishonour of cheque for want of funds? In this connection, it is relevant to refer the definition of the word `dormant'. `Dormant' literally means `inactive' or `torpid'. Therefore, when cheque returned unpaid with endorsement `account dormant', it means `account inactive' for want of funds. It is difficult to lay down a proposition that, when the account is inactive, there is sufficient amount outstanding in the said account. Therefore, it has to be held that even dishonour of cheque with endorsement `account dormant' also is the species of the genus , `amount of money in account is insufficient' and in such scenario, it could not be held that when the cheque was dishonoured with endorsement `account dormant' the same would not attract an offence under Section 138 of the N.I Act. 13. In this connection, it is relevant to refer Section 146 of the N.I Act. Section 146 provides that _the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the_ Crl.R.P No.1/2022 8 _cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved_ . Therefore, the presumption under Section 146 would apply in relation to a cheque which was dishonoured for the reason `account dormant' also. 14. In this case, it is true that Ext.P7 was produced before the court, without a certificate mandated under Section 65B of the Evidence Act. But while giving evidence as PW2, the Deputy Manager of Syndicate bank, who had produced Ext.P7, given categorical evidence that when the cheque was presented, the account showed `zero balance'. The said evidence, in fact, is the substantive direct evidence of the manager, who gathered the same on verification of the original account statement. If so, the said evidence is acceptable, even without Ext.P7. Therefore, it has to be held that the twin contentions raised by the learned counsel for the accused to upset the concurrent verdicts could not yield. 15. Although the learned counsel for the revision petitioner/accused argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court, finally Crl.R.P No.1/2022 9 he conceded that the revision petitioner/accused will be satisfied with grant of six months' time to pay the compensation. 16. 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. 17. 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 Crl.R.P No.1/2022 10 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 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**_ . 18. No other contentions raised in this matter. Therefore, there is no reason to disbelieve the transaction as well as the execution of the cheque. As such, the concurrent verdicts of conviction do not require any interference. The sentence also does not require any interference since the appellate court rightly modified the substantive sentence to imprisonment till rising of the court, to meet the ends of justice, while confirming the later part of the sentence imposed by the trial court. 19. Accordingly, the Revision Petition stands dismissed. Crl.R.P No.1/2022 11 20. Although the learned counsel for the revision petitioner/accused sought six months' time to pay the fine/compensation, the learned counsel for the complainant fervently opposed grant of six months time on the submission that the complainant is a person suffering from kidney failure and he needs huge amount of money to survive and, therefore, this Court may have to consider the said aspect also while granting time. 21. In this matter, the cheque amount is Rs.3 lakh and the transaction is of the year 2012. Therefore, grant of six months' time cannot be justified. However, in the interests of justice, I am inclined to grant two months' time from today to pay the fine/compensation. Therefore, the revision petitioner/accused is directed to appear before the trial court on or before 20.02.2023 to undergo the sentence and to pay fine. On failure to do so, the trial court is directed to execute the sentence as per law without fail. 22. Since time granted till 20.02.2023, execution of the sentence shall stand deferred till 19.02.2023. Crl.R.P No.1/2022 12 Registry shall forward a copy of this order to the court below concerned for information and compliance. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_