R. Rajan Pillai v. Ibrahim Kutty (deceased) and State of Kerala and Addl.R3 Subaida Beevi and Sri Sangeetha Raj-PP

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 CRL.REV.PET NO. 4337 OF 2006** **JUDGMENT DATED 28.07.2006 IN CRA 248/2004 ON THE FILE OF THE** **SESSIONS COURT, PATHANAMTHITTA** **JUDGMENT DATED 31.07.2004 IN CC 139/2003 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS -II, PATHANAMTHITTA** **REVISION PETITIONER/APPELLANT/ACCUSED:** **R.RAJAN PILLAI, AMBADIYIL HOUSE (AMBADIYIL WOOD INDUSTRIES), VENGAI P.O., SASTHAMCOTTA.** **BY ADV SRI.K.ABDUL JAWAD** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 IBRAHIM KUTTY (EXPIRED) SHAJAHAN MANZIL, PULICHANI, ARUVAPPULAM VILLAGE, KOZHANCHERRY. 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## ***ADDL.R3 SUBAIDA BEEVI** **W/O LATE IBRAHIM KUTTY, SHAJAHAN MANZIL, ARUVAPULAM.P.O,VENMELIPADI, PULICHANI JN, KOZHANCHERY,PATHANAMTHITTA DT.-689691 *ADDL.R3 IS IMPLEADED VIDE ORDER DATED 21/03/2021 IN CRLMA 1/22** **SRI SANGEETHA RAJ-PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 4337 OF 2006** 2 ## **O R D E R** This Crl.Rev. Petition has been directed against the judgment dated 28.07.2006 in Crl.Appeal No.248 of 2004 on the file of the Sessions Court, Pathanamthitta (for short 'the appellate court') confirming the judgment dated 31.07.2004 in C.C.No.139 OF 2003 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta (for short 'the trial court'). 2. The revision petitioner is the accused. The first respondent, the complainant expired during the pedency of this revision. Accordingly, the 3[rd] respondent was impleaded as his legal heir. 3. The accused faced trial for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'). 4. The case of the complainant is that the accused purchased wooden logs from him and towards the sale consideration, Ext.P1 cheque was issued. Indisputably, **CRL.REV.PET NO. 4337 OF 2006** 3 the cheque on presentation was returned as dishonoured for the reason “funds insufficient”. Eventhough, Ext.P4 statutory notice under Section 138(B) of the NI Act was issued by the complainant to the accused and the accused received the same, there was no compliance. Hence a complaint was instituted by the complainant. 5. The accused appeared at the trial court. His plea was recorded. On the side of the complainant, PW1 was examined and Exts.P1 to P7 were marked. On the side of the defence, DW1 was examined. After trial, the trial court found the accused guilty of the offence punishable under Section 138 of the NI Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.32,000/- under Section 357 (3) of Cr.P.C, in default to suffer simple imprisonment for three months. In appeal, the appellate court confirmed the conviction, but modified the sentence to imprisonment till rising of the court and further to pay a compensation of Rs.32,000/- **CRL.REV.PET NO. 4337 OF 2006** 4 under Section 357 (3) of Cr.P.C, in default to suffer simple imprisonment for three months. Challenging the conviction and sentence, the accused preferred this revision petition. 6. I have heard Sri.K.Abdul Jawad, the learned counsel for the petitioner. Eventhough, notice has been served to the respondent No.3, there is no appearance. 7. The learned counsel for the petitioner submitted that the petitioner miserably failed to prove the transaction and the execution of the cheque. The learned counsel further submitted that there is material alteration to Ext.P1 cheque, which was not properly appreciated by the court below. The learned counsel also submitted that, on facts, the presumption under Sections 118 and 139 of NI Act could not have been drawn. 8. To prove the transaction and the execution and issuance of the cheque, the complainant himself gave evidence as PW1. He deposed that the accused purchased wooden logs from him and in discharge of the said debt, **CRL.REV.PET NO. 4337 OF 2006** 5 Ext.P1 cheque was issued. On the other hand, the case of the accused is that the cheque in question was issued as a security for the sale transaction. 9. A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118(a) and under Section 139 of the NI Act. The presumption under Section 139 of the NI Act is a presumption of law, as distinguished from presumption of facts. The obligation on the prosecution may be discharged with the help of the presumption of law and presumption of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was not issued for discharge of any debt or liability in terms of Section 138. 10. The Apex Court in _**Uttam Ram v. Devinder Singh**_ **CRL.REV.PET NO. 4337 OF 2006** 6 _**Hudan and Another**_ [2019 (5) KHC 179], has held that when a cheque is issued, it is presumed that the cheque was drawn for consideration and the holder of cheque received the same in discharge of an existing debt. In _**Kumar Exports v. Sharma Carpets**_ [(2009) 2 SCC 513], the Apex Court held that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is more probable has to be brought on record for getting the burden of proof shifted to the complainant. In _**Bir Singh v. Mukesh Kumar**_ (AIR 2019 SC 2446), it was held 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. In _**Kalamani Tex and Another v. P. Balasubramanian**_ (2021 (2) KHC 517), the Apex Court reiterated that once signature of an accused on the cheque is established, then reverse onus clause becomes operative, and in such a situation, obligation **CRL.REV.PET NO. 4337 OF 2006** 7 shifts upon the accused to discharge presumption imposed upon him. 11. Coming to the facts of the case, though execution of Ext.P1 cheque was denied by the accused, he did not dispute the signature. The evidence of PW1 is sufficient to prove the transaction, execution and issuance of the cheque. PW1 has categorically stated that cheque was executed and issued by the accused. There is nothing to disbelieve the said version. Eventhough, the accused has taken up a contention that the cheque in question was issued as a security for the sale transaction, there is nothing to substantiate the said contention. Once the signature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of NI Act would come into play. A contention was raised that the cheque has been materially altered. The alteration alleged are the writing of the names and amount as well as the correction of the date. Both courts below on appreciating the **CRL.REV.PET NO. 4337 OF 2006** 8 evidence concurrently found that there is no material alteration. It is settled that the scope of revisional jurisdiction cannot be extended to re-appreciation of the evidence. Therefore, the said finding of fact cannot be interfered under the exercise of the revisionary jurisdiction of this Court. Hence, I find no reason to interfere with the impugned judgments. Revision Petition fails and accordingly, it is dismissed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS