Ranju Jose v. Gijesh George and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944 CRL.REV.PET NO. 658 OF 2022** **AGAINST THE JUDGMENT DATED 23.07.2022 IN CRA 166/2019 OF ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA AND JUDGMENT DATED 13.05.2019 IN CC.NO.8/2016 OF J.F.C.M-II,** ## **MUVATTUPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** RANJU JOSE, AGED 40 YEARS S/O JOSE THOMAS, KIZHAKKUMPURATH HOUSE, KADAVUR.P.O, THEKKEPUNNAMATTAM, MUVATTUPUZHA, PIN – 686671. BY ADVS. SUNIL SHANKER SANDHRA.S S.UNNIKRISHNAN (VARKALA) VIDYA GANGADHARAN ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** 1 GIJESH GEORGE S/O K.V. GEORGE , AGED 32 YEARS, KARIKKOTHU HOUSE, AVOLY. P.O, MUVATTUPUZHA, PIN – 686670. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY ADV SIKHA G.NAIR SR. PUBLIC PROSECUTOR SRI T.R.RENJITH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.658/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.658 of 2022_ ================================ _Dated this the 11[th] day of November, 2022_ ## _**O R D E R**_ This is a Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure. The revision petitioner is the sole accused in C.C.No.8/2016 on the file of the Judicial First Class Magistrate-II, Muvattupuzha. The revision petitioner impugns judgment dated 13.05.2019 in the above case, whereby the revision petitioner was found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the `N.I Act' for easy reference) and sentenced to undergo simple imprisonment for a period of 3 months and to pay fine of Rs.7,46,000/-. In default of payment of fine, to undergo Crl.R.P.No.658/2022 3 simple imprisonment for a period of 3 months also was imposed. The revision petitioner filed Crl.Appeal No.166/2019 before the Sessions Court, Kottayam and the Additional Sessions Judge, Muvattupuzha considered the Crl.Appeal on merits while modifying the sentence. Accordingly, the appellate court sentenced the revision petitioner to undergo simple imprisonment till rising of the court and to pay fine of Rs.7,46,000/- and in default of payment of fine, to undergo simple imprisonment for a period of 3 months. The fine imposed was ordered to be paid to the complainant as fine under Section 357(1)(b) of Cr.P.C. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor appearing for the 2nd respondent. Notice to the 1st respondent dispensed with. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 4. The gist of the prosecution allegation is that the accused Crl.R.P.No.658/2022 4 borrowed Rs.7,46,000/- from the complainant on 2 occasions for his business purpose and in discharge of the said liability, the accused issued cheque dated 23.11.2012 for the said sum. When the cheque was presented for collection, the same got dishonoured for want of funds. Thereafter notice of dishonour was caused and payment was demanded by the complainant, but the accused did not make the payment. Thus the complainant launched prosecution under Section 138 of the N.I Act. 5. The trial court tried the matter. During trial, PW1 examined and Exts.P1 to P5 were marked on the side of the complainant Exts.X1 to X3 were also marked. 6. When opportunity was given to the accused to adduce evidence under Section 313(1)(b) of Cr.P.C, he himself got examined as DW1 and Exts.D1 and D2 were marked on the side of the accused. 7. After appreciation of the evidence, the trial court Crl.R.P.No.658/2022 5 convicted and sentenced the accused. In Crl.Appeal No.166/2019, the learned Additional Sessions Judge confirmed the sentence while modifying the sentence as indicated above. 8. The learned counsel for the revision petitioner submitted that the concurrent findings of conviction entered into by the trial court are wrong and both the courts below failed to appreciate and re-appreciate the evidence. He also submitted that no notice under Section 138 of the N.I Act was issued in this matter and, therefore, the prosecution is vitiated. 9. To be on the matter in dispute, it could be gathered that the courts below relied on the evidence given by the complainant before the trial court that accused borrowed Rs.7,46,000/- on 2 occasions for his business purpose and in discharge of the said liability, the accused issued Ext.P1 cheque for the said sum, dated 23.11.2012. PW1 given evidence in detail inasmuch as the way in which he had advanced money through his account, relying on Crl.R.P.No.658/2022 6 Exts.X1 to X3 account statements. The accused challenged the execution of the cheque before the trial court as well as the appellate court. Both the courts below concurrently found that the evidence of PW1 supported by Exts.P1 to P3 and Exts.X1 to X3 categorically proved the prosecution led to execution of Ext.P1 cheque. Both the courts below also negatived the contentions raised by the accused. In the evidence of DW1, he had given evidence that his permanent address is not the address given in the notice. Thus the legal question to be considered in this case is whether statutory notice as mandated under Section 138(b) of the N.I Act was issued to the accused? In this case, Ext.P3 notice was issued in the address “Kizhakkumpurathu House, Kadavoor P.O, Thekke Punnamattam, Muvattupuzha”. It was deposed by DW1 that his permanent address is “Kizhakkumpurathu Veettil, Kadavoor Village, Kadavoor P.O” and it has been observed by the trial court that notice was issued in the same address and the notice Crl.R.P.No.658/2022 7 was returned with the endorsement `addressee left without intimation'. 10. The law is settled inasmuch as the mode of issuance of notice under Section 138(b) of the N.I Act. The Apex Court considered the relevant provisions of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 in the decision reported in [2007 (2) KHC 932 : 2007 (2) KLD 148 : ILR 2007 (3) Ker. 203 : 2007 (6) SCC 555 : JT 2007 (7) SC 498 : 2007 (3) KLT 77 : 2007 (3) KLJ 81 : 2007 CriLJ 3214 : 2007 (3) SCC (Cri) 236 : 2007 (2) Guj LH 512 : 2008 (1) MPLJ 441 : 2008 (1) Mah LJ 44], _**C.C.Alavi Haji v. Palapetty Muhammed & anr.**_ and held as under: _“Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the_ Crl.R.P.No.658/2022 8 _addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement `refused' or `not available in the house' or `house locked' or `shop closed' or `addressee not in station', due service has to be presumed.”_ 11. Thus the law regarding issuance of notice is no more _res-integra_ . Since Section 27 gives a presumption that service of notice has been effected when it is sent in correct address by registered post. If such a notice is returned for any reason without accepting the same, service of notice is implied. 12. In this matter it could be noticed that the notice was issued in the correct address as admitted by the accused and the same was returned with endorsement `adressee left without intimation'. Hence there is sufficient notice in this matter. In view of the matter, the challenge in the matter of notice was rightly negatived by the courts below and the said aspect also would do no Crl.R.P.No.658/2022 9 help to the revision petitioner. Therefore, it has to be held that notice mandated under Section 138(b) of the N.I Act was rightly issued and the said contention cannot be accepted. 13. In this matter, I have already pointed out that the evidence of PW1 and Exts.P1 to P5 and Exts.X1 to X3 are given emphasis by the trial court as well as the appellate court and nothing substantiated during hearing of the revision petition to find any illegality in the finding. Therefore, it has to be held that available evidence relied on by the trial court as well as the appellate court to prove the transaction led to execution of Ext.P1 cheque would canvass presumption under Sections 118 and 139 of the N.I Act. 14. In such a case, the power of revision available to this Court is also very limited. 15. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C r/w Crl.R.P.No.658/2022 10 Section 397, which is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], _**State of Kerala v. Puttumana Illath Jathavedan Namboodiri**_ , the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5): _“5. …... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same 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 the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by_ Crl.R.P.No.658/2022 11 _reappreciating the oral evidence. ...”_ 16. In another decision reported in [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke**_ , the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order or of the Magistrate unless it is perverse or wholly unreasonable - there is non consideration of any relevant material, the order cannot be set aside merely on the ground that another view is . possible Following has been laid down in para.14 (SCC p.135) : _“14. …... 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 Cr.P.C is not to be equated with that of an appeal. 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 glaring unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion_ Crl.R.P.No.658/2022 12 _is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 17. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda**_ . Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 18. In this case, as I have already pointed out, the trial court Crl.R.P.No.658/2022 13 as well as the appellate court rightly appreciated the evidence given by PW1 supported by Exts.P1 to P5 and Exts.X1 to X3 to prove that the accused herein issued Ext.P1 cheque for consideration. Thereby the complainant proved his initial burden entitling him to get the benefit of presumptions under Sections 118 and 139 of the N.I Act. 19. No doubt, law regarding presumption is well settled. 20. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Mohan**_ . In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution under Section 138 of the N.I Act and held as under: _“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 [2008 (1) KLT 425 (SC)] may not be correct. 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_ Crl.R.P.No.658/2022 14 _can be contested. However, there can be no doubt that there is an initial presumption which favours the 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 specified 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 legally enforceable debt or liability, the prosecution can fail. 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.”_ 21. In the decision reported in [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 Crl.R.P.No.658/2022 15 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], _**Bir Singh v. Mukesh Kumar**_ , the Apex Court while dealing with a case where the accused has a contention that the cheque issued was a blank cheque, it was held as under: _“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. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.”_ 22. In a latest 3 Bench decision of the Apex Court reported in [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.**_ Crl.R.P.No.658/2022 16 _**P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I Act it was held as under: _“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 S.118 and S.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. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay._ _…................_ _18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that:_ _“Even a blank cheque leaf, voluntarily signed_ Crl.R.P.No.658/2022 17 _and handed over by the accused, which is towards some payment, would attract presumption under S.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.”_ 23. Thus the law is clear 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 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. 24. 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. 25. In view of the discussions, there is no reason to interfere with the concurrent finding of conviction. 26. However, today when the order is about to be Crl.R.P.No.658/2022 18 pronounced, the defacto complainant appeared in person before this Court and his identity was verified and found satisfied by identifying his original Aadhar card, shown in open Court. He submitted that he had received Rs.2 lakh by cash in hand the remaining amount by way of cheque and he did not want any relief in this matter and the prosecution can be put to an end. 27. Therefore, I am inclined to modify the sentence imposed by the appellate to payment of fine alone. Since the payment of fine is received by the defacto complainant, the modified sentence also stands executed. The Revision Petition stands allowed accordingly. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_