Rajagopal v. Anil Kumar and State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 ``` ## `CRL.REV.PET NO. 1301 OF 2011` ``` AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE PASSED IN ST 151/2006 DATED 20.04.2010 ON THE FILE OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE III, CONFIRMED AND MODIFIED IN THE JUDGMENT IN CRIMINAL APPEAL NO.294/2010 DATED 16.03.2011 ON THE FILE OF ADDITIONAL DISTRICT COURT ``` ``` (ADHOC) III, PALAKKAD ``` ## `REVISION PETITIONER/ACCUSED/APPELLANT:` ``` 1RAJAGOPAL 2ND FLOOR, ORIENTAL BUSINESS CENTRE, JUDGES AVENUE, KALOOR, ERNAKULAM. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN ``` ## `RESPONDENTS/COMPLAINANT/RESPONDENTS:` ``` 1ANILKUMAR S/O. KRISHNAN HARITHA NAGAR, PALAKKAD. 2STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT SEETHA S, SR. PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P. No.1301 of 2011 ``` ``` 2 ``` ## C. S. DIAS, J. ``` ------------------------- ``` ## Crl.R.P. No.1301 of 2011 `-------------------------` Dated this the 25[th] day of September, 2023 ## ORDER The revision petition is directed against the judgment of the Court of Sessions, Palakkad (Appellate Court) in Crl.A.No.294/2010, whereby the said Court had confirmed the conviction of the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, 'N.I. Act') passed by the Court of the Judicial First Class Magistrate-III (Trial Court) in S.T. No.151/2006, but modified the sentence by directing the revision petitioner to pay a fine of Rs.90,000/- and in default to undergo simple imprisonment for a period of three months. The revision petitioner was the accused and the first respondent was the ``` Crl.R.P. No.1301 of 2011 ``` ``` 3 ``` ## complainant before the Trial Court. ## The facts in brief 2. The first respondent had filed the above complaint before the Trial Court alleging that the revision petitioner had collected an amount of Rs.78,000/- from him, assuring him to give a job with a monthly salary of Rs.7,000/-. As the revision petitioner failed to keep up to his promise, he issued Ext.P2 cheque for an amount of Rs.78,000/- in favour of the first respondent. The cheque on presentation to the bank for collection got dishonoured by Ext.P3 memo, due to ‘insufficiency of funds’ in the account of the revision petitioner. Although the revision petitioner issued Ext.P5 statutory lawyer notice, the revision petitioner failed to pay the demanded amount. Instead, he issued Ext.P6 reply notice denying the assertions in the lawyer notice. Hence, the revision petitioner committed the ``` Crl.R.P. No.1301 of 2011 ``` ``` 4 ``` offence under Section 138 of the N.I.Act. ## Trial 3. The revision petitioner got himself enlarged on bail and denied the substance of accusation read over to him. In trial, the first respondent examined himself as PW1 and marked Exts.P1 to P6 in evidence. The revision petitioner denied the incriminating accusation put to him in the questioning under Section 313 of the Code of Criminal Procedure (in short, 'Cr.P.C.'). The revision petitioner did not let in any defence evidence. ## Trial Court Judgment 4. The Trial Court, after analysing the materials on record, convicted the revision petitioner for the offence under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.80,000/-, and in default to ``` Crl.R.P. No.1301 of 2011 ``` ``` 5 ``` undergo simple imprisonment for a further period of three months. If the fine amount was realised, the same to be paid as compensation to the first respondent under Section 357(3) of the Cr.P.C. ## The Appellate Court 5. Aggrieved by the judgment, the revision petitioner filed Crl.A.No.294/2010 before the Appellate Court. ## The Appellate Court Judgment 6. The Appellate Court, after reappreciating the materials on record, partly allowed the appeal by confirming the conviction, but modifying the sentence to that of fine by directing the revision petitioner to pay a fine of Rs.90,000/- to the first respondent and in default to undergo simple imprisonment for a period of three months. And, if the fine amount was realised, the same to be paid to the first ``` Crl.R.P. No.1301 of 2011 ``` ``` 6 ``` respondent as compensation under Section 357 Cr.P.C. 7. It is questioning the conviction and sentence passed by the courts below that the present revision petition is filed. 8. Heard; Sri.Nagaraj Narayanan, the learned counsel appearing for the revision petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the second respondentState. 9. When the revision petition came up for consideration on 08.07.2011, this Court did not admit the revision petition, but ordered the conditional suspension of the execution of the sentence by directing the revision petitioner to deposit one half of the fine amount before the Trial Court within a period of one month, failing which the Trial Court to execute the sentence. 10. When the revision petition came up for ``` Crl.R.P. No.1301 of 2011 ``` ``` 7 ``` further consideration on 18.09.2023, this Court called for a report from the Trial Court to ascertain as to whether the revision petitioner has complied with the order dated 08.07.2011. 11. The Trial Court, by communication dated 21.09.2023, has informed this Court that the revision petitioner has not appeared before the Trial Court and has not complied with the order dated 08.07.2011 passed by this Court. A non-bailable warrant and a distress warrant have been issued against the revision petitioner, which is pending execution. 12. In view of the fact that this Court has not admitted the revision petition and the revision petitioner has not complied with the conditional interim order dated 08.07.2011, this Court has taken up the revision petition for admission. 13. Before I delve into the legality and ``` Crl.R.P. No.1301 of 2011 ``` ``` 8 ``` correctness of the impugned judgments, this Court reminds itself of the scope and purport of the revisional jurisdiction under Sections 397 to 401 of the Cr.P.C. 14. There is a profusion of precedential authority that the revisional power of this Court is to be sparingly exercised and in exceptional rarity. The power is more in the nature of supervisory jurisdiction, to correct the miscarriage of justice, if any found. The revisional power cannot be equated with Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless and until there is patent illegality, which is shocking to the conscience of the Court. 15. In Ramrao Chavan vs Sanjaysinh Dattatray Gulabrao Phalke & Anr [(2015) 3 SCC ``` Crl.R.P. No.1301 of 2011 ``` ``` 9 ``` 123] , the Hon’ble Supreme Court has succinctly laid down the scope and powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. 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 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to ``` Crl.R.P. No.1301 of 2011 ``` ``` 10 ``` be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly 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.” 16. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Sections 118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: ## “118. Presumptions as to negotiable — instruments Until the contrary is proved, the following presumptions shall be made;- (a) of consideration — that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; 139. Presumption in favour of holder —It shall be presumed, unless the contrary is ``` Crl.R.P. No.1301 of 2011 ``` ``` 11 ``` proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.” 17. A three-Judge Bench of the Hon’ble Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325] , while dealing with Section 139 of the N.I Act has conceptualised the doctrine of ‘reverse onus’, by holding thus: “18. In light of these extracts, we are in agreement with the respondent - claimant that 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 (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 ``` Crl.R.P. No.1301 of 2011 ``` ``` 12 ``` 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 specifies a strong criminal remedy in relation to the dishonour of cheques, the 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 ``` Crl.R.P. No.1301 of 2011 ``` ``` 13 ``` legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the 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. 15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under S.138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant - accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the ``` Crl.R.P. No.1301 of 2011 ``` ``` 14 ``` complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction - related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction - expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. 18. Recently, a three-Judge Bench of the Hon’ble Supreme Court in Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declare the law on the point in the following terms: ``` Crl.R.P. No.1301 of 2011 ``` ``` 15 ``` “14. 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 Section 118 and Section 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. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243).” 19. The specific case of the first respondent is that the accused in discharge of a legally enforceable debt had issued Ext.P2 cheque for an amount of Rs.78,000/-, which on presentation for encashment got dishonoured due to insufficiency of funds in the account of the revision petitioner. Although the revision petitioner sent Ext.P6 reply, he did not mount the box or produce any material to substantiate his defence. ``` Crl.R.P. No.1301 of 2011 ``` ``` 16 ``` 20. Admittedly, the revision petitioner has not let in any evidence to dispel the reverse onus of proof that has been cast upon him under Section 139 of the N.I. Act. Even though the endorsement on Ext.P3 memo was ‘account closed’, it is proved in evidence that there was no sufficient funds in the account of the revision petitioner. 21. The courts below, after analysing the materials on record, have concurrently arrived at the conclusion that the revision petitioner has miserably failed to discharge the reverse onus of proof. 22. I do not find any material or valid ground to take a contrary view to admit the revision petition at this distance of time. The revision petition is meritless and is dismissed at the threshold. The Registry is directed to forthwith forward a copy of this ``` Crl.R.P. No.1301 of 2011 ``` ``` 17 ``` order to the Trial Court for the execution of the sentence passed against the revision petitioner, in accordance with law. Sd/C. S. DIAS JUDGE SKP/25-09