Priyamvada K. v. M. Rahufina and State of Kerala

# **“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945** **CRL.REV.PET NO. 934 OF 2019** **AGAINST THE JUDGMENT DATED 12.06.2019 IN CRA 76/2019 OF ADDITIONAL SESSIONS COURT-IV, KOZHIKODE AND THE JUDGMENT DATED 05.02.2019 IN ST 1659/2017 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS (NI ACT CASES), KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **PRIYAMVADA K., AGED 49 YEARS, W/O. RADHAKRISHNAN, ADIYARUPARAMBATH, KARUVASSERY P.O, KOZHIKODE - 673 010.** **BY ADVS. P.G.JAYASHANKAR KUM.P.K.RESHMA (KALARICKAL) SMT.REVATHY P. MANOHARAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 M.RAHUFINA, AGED 40 YEARS W/O. ABDUL NAZAR, MADATHIL HOUSE, KAKKODI P.O, KOZHIKODE 673 611.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY SRI.T.R.HARIKUMAR R1 BY SRI.ADITHYA RAJEEV R2 BY SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR** **FINAL HEARING ON 29.11.2023, THE COURT ON 09.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.934 of 2019 **P.G. AJITHKUMAR, J. “C.R.” ----------------------------------------------------------Crl.R.P.No.934 of 2019 ----------------------------------------------------------Dated this the 9[th] day of January, 2024** ## **O R D E R** The petitioner, who stands convicted and sentenced for an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act) has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). The trial court convicted her and sentenced to pay a fine of Rs.6 lakhs and in default of payment of fine to undergo simple imprisonment for a period of four months. It was directed that the fine amount, if realised, should be paid to the 1[st] respondent-complainant as compensation. The Appellate Court confirmed the conviction and the sentence. 2. The 1[st] respondent filed the complaint with the following allegations: The 1[st] respondent had a chitty transaction with the petitioner. In relation to that Rs.6 lakhs was due to the 1[st] respondent 3 Crl.R.P.No.934 of 2019 and for the payment of that amount, the petitioner issued Ext.P1 cheque. When the said cheque was presented for encashment, it was returned unpaid. A demand notice was issued and on receipt of it, the appellant sent a reply. The amount due under the cheque was not repaid. 3. The petitioner appeared before the trial court on receipt of summons and denied the accusation. The 1[st] respondent examined herself as PW1 and produced Exts.P1 to P5. The petitioner was examined under Section 313(1)(b) of the Code. She denied the incriminating circumstances. She further set forth the following defence. She borrowed Rs.5 lakhs from the 1[st] respondent in 2016. No security was given at that time. However, after a year, a cheque drawn by her husband for an amount of Rs.3 lakhs was given. In June, 2017, Rs.2,75,000/- was paid to the 1[st] respondent. Later, under coercion and threat by the 1[st] respondent, the petitioner had to issue a blank cheque and chitty passbooks with false entries. It is incorrect that Rs.6 lakhs was due from the petitioner to the 1[st] respondent. Misusing the blank cheque 4 Crl.R.P.No.934 of 2019 given by the petitioner, the prosecution was initiated. No evidence was, however, adduced by the petitioner. 4. After appreciating the evidence available on record, the trial court found the appellant guilty. The contentions set forth before the Appellate Court to assail the conviction and sentence were not accepted by the Appellate Court. The correctness, legality and propriety of such concurrent findings of the courts below are under challenge in this revision. 5. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and the learned Public Prosecutor. 6. The contention of the petitioner concerning Ext.P1 cheque is that it was issued in blank under threat and coercion. The case of the 1[st] respondent, on the other hand, is that in order to make payment of the amount due to her from the petitioner under a chit transaction, Ext.P1 was issued. It is alleged by the petitioner that in the complaint or in the demand notice, details of the chit transaction were not mentioned and therefore the prosecution is bound to fail. 5 Crl.R.P.No.934 of 2019 When the circumstances culminating in issuance of Ext.P1 are not disclosed, at least in the complaint, Ext.P1 cannot be used for a valid prosecution. The learned counsel for the petitioner highlighted the aforesaid facts in order to contend that the burden is heavy on the 1[st] respondent to prove execution of the cheque; whereas, the oral testimony of PW1 alone is available to prove its execution, which is totally insufficient and hence the prosecution is bound to fail. 7. In **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]** the Apex Court held that 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 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. It was further held that even a blank cheque leaf, voluntarily signed 6 Crl.R.P.No.934 of 2019 and handed over by the accused, which is towards some payment, would attract presumption under Section 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. 8. The Apex Court in **Basalingappa v. Mudibasappa [(2019) 5 SCC 418]** encapsulated the principles of law governing presumption under Section 118(a) and 139 of the N.I. Act and how the presumption can be rebutted. It was held,- “23. We having noticed the ratio laid down by this Court in above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to 7 Crl.R.P.No.934 of 2019 raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. - (v) It is not necessary for the accused to come in the witness box to support his defence.” 9. Reiterating the aforesaid principles, a three Judge Bench of the Apex Court in **M/s Kalamani Tex and another v. P.Balasubramanian [(2021) 5 SCC 283]** held that once the signature of an accused on the cheque is established, the 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. A similar view was taken by the Apex Court in **Rajesh Jain v. Ajay Singh [2023 (6) KHC 391 (SC): 2023 SCC OnLine SC 1275]** also. It was held that Section 139 of the N.I. Act requires that the Court 'shall presume' the fact stated therein, and hence it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the 8 Crl.R.P.No.934 of 2019 presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'. 10. PW1 deposed before the court that Ext.P1 was executed by the petitioner in her presence. Although it is contended that Ext.P1 was issued in blank, the signature in it is admitted by the petitioner. Going by the contentions of the petitioner, it can certainly be said that the petitioner admitted issuance of Ext.P1 cheque duly signed. Of course, she has a definite contention that it was issued under threat and coercion. Dehors that, there is admission of her signature in Ext. P1. In the light of the law laid down in the aforesaid decisions, a presumption under Section 139 of the N.I.Act that Ext.P1 was issued in discharge of a legally enforceable debt can therefore be drawn. Whether it is vitiated by a stifling threat is a fact to be established by the petitioner. 9 Crl.R.P.No.934 of 2019 ## 11. In **Rajesh Jain** (supra) the Apex Court further held ## as follows:- “Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138.” 12. The Apex Court also held that if the accused discharges his evidential burden, the complainant would be expected to prove the fact that the cheque is supported by consideration independently and without the aid of the presumption. In that event, the court shall consider the entire evidence on record to arrive at a decision. 13. In this case the petitioner did not adduce any evidence. The learned counsel for the petitioner would submit that the accused need not always lead evidence to rebut the 10 Crl.R.P.No.934 of 2019 presumption under Section 139 of the N.I.Act. She can rely on the evidence let in by the prosecution and circumstances arising out of the materials on record in order to substantiate his case. He placed reliance in that regard in **Kundan Lal** ## **Rallaram v. Custodian, Evacuee Property, Bombay [AIR** **1961 SC 1316].** It was held that a presumption of law or fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. 14. The learned counsel for the petitioner would submit that when the 1[st] respondent contended that the cheque was issued for payment of money due under a chit transaction, it was for her to establish that the chit she had subscribed was a legal one. It is pointed out that despite calling for production, the 1[st] respondent failed to produce documents concerning the chit and hence an adverse inference that the chit was illegal should be drawn. But, the petitioner is said to be the foreman, and hence the primary burden is on her to produce the documents relating to the chit. 15. Be that as it may, from the rival contentions and 11 Crl.R.P.No.934 of 2019 the aforementioned circumstances, what could be concluded is that, if at all a chit was conducted by the petitioner, it was without any licence. The contention of the learned counsel for the petitioner is that, if so, any money paid by the 1[st] respondent towards such an illegal chit transaction cannot be a valid consideration for Ext.P1 cheque. It is accordingly submitted that the burden to rebut the presumption under Section 139 of the N.I. Act was rebutted by the petitioner. 16. In **A.N.Nadarajan v. K.G.Nadarajan [1999 (2) KLT 512]** , this Court held that a cheque issued for payment of money due in a chit transaction, which has been conducted in violation of the Kerala Chitties Act, 1975 would not be an illegal transaction or against public policy and therefore a prosecution on the basis of such a cheque is legal. I do not find any reason to deviate from the said view. When the money is due under a chit transaction and the foreman issues a cheque for the payment of such a debt, the fact that the chit was conducted without permission shall not be a reason to hold that the debt is not legally enforceable. Therefore, the 12 Crl.R.P.No.934 of 2019 contention of the petitioner in that regard cannot be countenanced. 17. In **Dr.Jyothi Prasad Bhat v. K.Sundara Rajan and another [2013 (3) KHC 141]** , the accused in a prosecution for an offence under Section 138 of the N.I.Act raised the contention that the cheque was obtained by the complainant by force and coercion. The accused, however, did not adduce any evidence to prove the allegations of force and coercion. This Court held that as long as the accused fails to prove his allegation that the execution of the cheque is shrouded by vitiating factors like threat or coercion, the presumption regarding consideration cannot be avoided. Here, the petitioner did not adduce any evidence to prove her allegation that Ext.P1 was obtained from her under threat and coercion. From the evidence tendered by the prosecution, no circumstance sufficient to probabilise the case of the petitioner is made out as well. In these circumstances, it can only be held that the courts below rightly had rejected the plea of the petitioner that Ext.P1 cheque is vitiated by threat and coercion. 13 Crl.R.P.No.934 of 2019 18. The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. (See: **State of Kerala v. Puttumana Illath Jathavedan Namboodiri [(1999) 2 SCC 452]; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123]; Kishan Rao v. Shankargouda [(2018) 8 SCC 165]** ). In the light of the proposition of law laid down in the aforesaid decisions, the findings of the courts below leading to the conviction of the petitioner cannot be said to be perverse, irregular or improper. Hence, the said concurrent findings of the courts 14 Crl.R.P.No.934 of 2019 below are not liable to be interfered with by this Court, in exercise of the powers of revision under Section 401 of the Code. 19. The learned counsel for the 1[st] respondent would submit that the amount of compensation ordered by the courts below is quite less and against the law laid down by the Apex Court in various decisions, including **Vijayan R. v. Baby and another [(2012) 1 SCC 260]** , wherein it was held that in all cases of conviction for an offence under Section 138 of the N.I.Act, the courts shall lean in favour of ordering compensation by imposing fine upto twice the cheque amount keeping in mind the cheque amount and the interest thereon at the rate of 9% per annum. 20. This is a revision petition filed by the accused against conviction and sentence. In such a revision, there cannot be an order for enhancing the punishment. The courts below sentenced the petitioner to pay fine and ordered the amount of fine, if realised, to be paid as compensation. The said order of sentence is not liable to be 15 Crl.R.P.No.934 of 2019 altered. The revision petition fails. Accordingly, this revision petition is dismissed. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr