Rajeev Gopalakrishnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 2[ND] DAY OF AUGUST 2023 / 11TH SRAVANA, 1945 CRL.REV.PET NO. 682 OF 2023 ``` ``` CRA 101/2020 OF ADDITIONAL SESSIONS COURT - V, KOTTAYAM ST 791/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ERATTUPETTA ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` RAJEEV GOPALAKRISHNAN AGED 33 YEARS S/O GOPALAKRISHNAN, KODIYANICHIRA (H), NADAKKAL P.O., ERATTUPETTA, KOTTAYAM, PIN - 686121 BY ADVS. AISWARYA E J VETTIKOMPIL CHRISTINE MATHEW ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE:`** ``` 1G. SANTHOSHKUMAR AGED 44 YEARS S/O GOPALAKRISHNAN NAIR, SREENILAYATH (H), PANACHIKAPPARA, POONJAR P.O., KOTTAYAM, PIN - 686581 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 R1 BY ADVS.SRI.P.YADHU KUMAR SRI.P.BABU KUMAR(K/413/1979) SMT.SWETHA K.S.(K/001604/2022) ``` ``` R2 BY PUBLIC PROSECUTOR SRI.M P PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 682 OF 2023 2 ``` ## **ORDER** Dated this the 2[nd] day of August, 2023 This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter). The revision petitioner is the accused in S.T.No.791/2017, on the files of the Judicial First Class Magistrate Court, Erattupetta. He impugns the said judgment as well as the judgment in Crl.A.No.101/2020, dated 7.12.2022, arising therefrom. 2. I shall refer the parties in this Revision Petition as to their status before the trial court as `complainant' and `accused'. 3. In this matter, the case of the complainant before the trial court was that, the accused, who is an employee of Erattupetta Aided School Teacher’s Co-operative Society, borrowed Rs.3,40,000/- (Rupees Three Lakh Forty Thousand only) from the complainant, as a hand loan, with offer to pay the same. Accordingly, the accused had issued ## **`CRL.REV.PET NO. 682 OF 2023 3`** a cheque for the said sum in the name of the complainant. But, when the said cheque was presented by the complainant through Punjab National Bank, Erattupetta branch on 16.1.2017, the same was dishonoured. The complainant initiated prosecution against the accused, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `the N.I Act', for short). 4. The trial court took cognizance of this matter and secured the presence of the accused for trial. During trial, PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant. After conclusion of the prosecution evidence, the accused was given opportunity to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C. Making use of the said opportunity, DW1 was examined and Exts.D1 to D3 were marked on the side of defence. 5. The trial court appreciated the evidence based on arguments tendered by both sides and finally convicted the accused for the offence punishable under Section 138 of ## **`CRL.REV.PET NO. 682 OF 2023 4`** the NI Act and he was sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.4,00,000/(Rupees Four Lakh only). Fine was ordered to be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. Default imprisonment for a period of 3 months also was imposed. The accused challenged the order of trial court before the Sessions Judge, Kottayam in Crl.Appeal No.101/2020. As per judgment, dated 7.12.2022, the learned Sessions Judge also confirmed the finding of the trial court and dismissed the appeal. 6. In fact, the learned counsel miserably failed to substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available to this Court. 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** ## **`CRL.REV.PET NO. 682 OF 2023 5`** **Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda** , are on this point. 7. I have perused the materials available and it is noticed that the accused raised a contention before the courts below that Ext.P1 cheque was obtained forcibly without support of any believable evidence and without filing even complaint in this regard before any authority, in writing. Therefore, courts below negatived the said contention and found that the complainant discharged his initial burden in the matter of transaction which led to execution of the cheque and accordingly, the benefit of twin presumptions under Sections 118 and 139 of the NI Act was given to the complainant. Accordingly, the accused was convicted and sentenced. 8. 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 ## **`CRL.REV.PET NO. 682 OF 2023 6`** 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 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** . In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions ## **`CRL.REV.PET NO. 682 OF 2023 7`** held above. 9. While challenging the concurrent verdicts of conviction and sentence imposed by the trial court as well as the appellate court, nothing argued by the learned counsel for the revision petitioner, on merits to upset the verdicts. Considering the matter within the limited power of revision, nothing substantiated to unsettle the concurrent verdicts, in any manner. Therefore, this revision fails and is accordingly dismissed. 10. In this context, the learned counsel for the accused/revision petitioner sought for 6 months' time to pay the fine amount. Considering the request of the learned counsel for the revision petitioner, I am inclined to grant two months’ time from today, to the accused to pay the fine amount. Therefore, execution of the sentence shall stand deferred till 2.10.2023 and the accused is directed to appear before the trial court on 3.10.2023, either to pay the fine amount or to undergo the default sentence. In default to do so, the trial court is directed to execute ``` CRL.REV.PET NO. 682 OF 2023 8 ``` the sentence, as per law, without fail. Registry is directed to forward a copy of this order to the trial court, for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** Bb