Rajeesh P.R. v. State of Kerala and Sree Gokulam Chit Finance Co. (P) Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941** ## **Crl.Rev.Pet.No.139 OF 2020** **AGAINST THE JUDGMENT IN CRA 77/2019 DATED 30-10-2019 OF SESSIONS COURT, PALAKKAD** **AGAINST THE JUDGMENT IN ST 36/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV, PALAKKAD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **RAJEESH P.R AGED 27 YEARS S/O.RAVEENDRAN, RESIDING SAT PANTHAKKAL HOUSE, MELEPATTAMBI, PATTAMBI (PO), PALAKKAD DISTRICT, PIN-679 303.** **BY ADVS. SHRI.T.K.AJITH KUMAR SMT.AISWARYA RAMESAN** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **2 SREE GOKULAM CHIT FINANCE CO.(P) LTD., DIVISIONAL OFFICE,M SANJOS TOWERS, OPP. KSRTC BUS STAND, SHORANUR ROAD, PALAKKAD, PIN-678 001, REPRESENTED BY ITS ASSISTANT MANAGER (LEGAL).** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON 31.01.2020 PASSED THE FOLLOWING:** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.139 of 2020 --------------------------------------------Dated this the 31[st] day of January, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.36/2016 on the file of the Court of the Judicial First Class Magistrate-IV, Palakkad. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to pay a fine of Rs.2,25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. The trial court also directed that, if the fine amount was paid, it shall be paid to the complainant as compensation. 3. The accused filed Crl.A.No.77/2019 before the Court of Session, Palakkad challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction of the petitioner under Section Crl.R.P.No.139/2020 3 138 of the Act but modified the sentence and reduced the sentence of fine to Rs.1,83,612/-. 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard learned counsel for the petitioner. 6. The case of the complainant is as follows: The complainant is a company conducting chitty business. The accused was a subscriber to the chitty conducted by the complainant company. He bid the chitty and received the chitty amount from the complainant. An amount of Rs.1,83,612/- was due from the accused to the complainant company in the chitty transaction. When the complainant demanded the aforesaid amount, the accused signed and issued a cheque dated 09.07.2015 for that amount in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to Crl.R.P.No.139/2020 4 the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount of the cheque. 7. During the trial of the case, PW1 and PW2 were examined on the side of the complainant and Exts.P1 to P9 documents were marked. No evidence was adduced by the accused. 8. Learned counsel for the petitioner contended that the petitioner received the statutory notice on 26.09.2015 and the complaint was filed only on 27.10.2015, one day beyond the period prescribed under the Act and for this sole reason, the judgments of the courts below are liable to be set aside. 9. The aforesaid contention raised by the learned counsel for the petitioner is misconceived as it ignores clause (c) of the proviso to Section 138 of the Act, which provides that, cause of action for filing the complaint arises when the drawer of the cheque fails to make the payment of the amount of the cheque to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice. Crl.R.P.No.139/2020 5 Section 142(1)(b) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Therefore, the complaint has to be filed only within a period of one month calculated from the date of expiry of the period of fifteen days from the date of receipt of notice by the drawer of the cheque and not within one month from the date of receipt of notice by the drawer of the cheque. 10. Another plea taken before the trial court was that the aforesaid court had no territorial jurisdiction to try the case. Such a plea was raised before the trial court at a very belated stage and therefore, the trial court rightly rejected it. Moreover, the trial court also noticed that, it was as per the direction of this Court that the Chief Judicial Magistrate had transferred the case to that court. Crl.R.P.No.139/2020 6 11. The Assistant Manager (Legal) of the complainant was examined as PW1 and Deputy Manager of the complainant company was examined as PW2. Ext.P1 resolution passed by the Board of Directors of the complainant company was produced to show that PW1 had authority to represent the complainant company in the case. 12. PW1 gave evidence that the accused signed and issued Ext.P1 cheque at the Divisional Office of the complainant company at Palakkad and gave it in discharge of the liability in the chitty transaction. PW2 was examined by the complainant to prove the execution of Ext.P9 promissory note by the accused at the time of receiving the chitty amount from the complainant company. 13. Ext.P8 statement of account was also produced to show the amount which was due from the accused to the complainant company in the chitty transaction. 14. The plea raised by the accused was that he had given signed blank cheque as security in the chitty transaction and that the complainant misused the cheque and filed the case. No Crl.R.P.No.139/2020 7 evidence was adduced by the accused to prove this plea. Nothing was brought out in the cross-examination of PW1 to prove that the plea of the accused is probable. On the other hand, the evidence of PW1 proves execution of Ext.P1 cheque by the accused and delivery of it to the complainant in discharge of the liability in the chitty transaction. 15. Once execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. The accused failed to rebut the presumption in any manner. 16. The complainant had sent statutory notice to the accused demanding payment of the amount of the cheque. The accused had received the notice. He did not send any reply. If as a matter of fact, he did not owe any amount to the complainant company and he had not issued the cheque in discharge of the liability towards the complainant company in the chitty transaction, he would have definitely sent a reply to the notice. The silence and inaction on the part of the accused after Crl.R.P.No.139/2020 8 receiving the statutory notice from the complainant leads to the inference that the version of the complainant is true. 17. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. 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 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 High Court shall not interfere with such finding or decision in exercise of its Crl.R.P.No.139/2020 9 ## revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR** **2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 18. The trial court imposed a sentence of fine of Rs.2,25,000/- on the petitioner/accused but the appellate court reduced the amount of fine to Rs.1,83,612/- which is equivalent to the amount of the cheque. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused. 19. Consequently, the revision petition is dismissed. Conviction of the petitioner for the offence punishable under Section 138 of the Act by the trial court, as affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the appellate court is also confirmed. The petitioner/accused is granted a period of three months from today to remit the fine amount in the trial court. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge