Rayeesa v. B. V. Surendan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 CRL.REV.PET NO. 1146 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CRA 317/2017 OF DISTRICT COURT &** **SESSIONS COURT, KOZHIKODE** **ST 15/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NADAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **RAYEESA AGED 26 YEARS D/O SOOPPI, ACHARKANDIYIL HOUSE, KODIYOORA P.O., VANIMEL, NADAPURAM, KOZHIKODE DISTRICT- 673 506.** ## **BY ADV SRINATH GIRISH** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **1 B.V.SURENDRAN AGED 52 YEARS S/O KUMARAN, THAIKANDIYIL HOUSE, IYYAMKODE P.O., NADAPURAM, VADAKARA TALUK, KOZHIKODE DISTRICT-673 504. 2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADVS. SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH)** ## **SRI.SANAL P RAJ, PUBLIC PROSECUTOR** ## **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.REV.PET NO. 1146 OF 2018** **2** ## **O R D E R** Dated this the 19[th] day of July, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for convenience), challenging judgment in S.T.No.15/2016 dated 10.08.2017 on the files of the Judicial First Class Magistrate Court-II, Nadapuram and also in Crl.A.No.317/2017 dated 10.07.2018 on the files of the Sessions Court, Kozhikode. 2. The revision petitioner is the sole accused in the above case. The respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4. I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 5. The brief facts of the case put up by the complainant before the trial court are as under: **CRL.REV.PET NO. 1146 OF 2018** **3** The accused, who had acquaintance with the complainant approached M/s.Parthas Jewellery run by the complainant and borrowed Rs.75,000/- (Rupees seventy five thousand only) for the purpose of redeeming gold ornaments alleged to be pledged by him. Thereafter, during the first week of October, 2014, when the accused herein demanded the money, the accused reached the jewellery and executed a cheque for Rs.75,000/- (Rupees seventy five thousand only) dated 30.10.2014 with assurance to repay the same. But when the cheque was presented for collection, the same was returned with endorsement “funds insufficient”. Soon after the dishonor, legal notice was issued demanding the said amount and the same was refused. Thereafter, crime was registered alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter). 6. The trial court took cognizance and secured the presence of accused for trial and finally tried the matter. During trial, PWs 1 and 2 were examined and Exts.P1 to P5 were **CRL.REV.PET NO. 1146 OF 2018** **4** marked on the side of the complainant. 7. On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to hi m, to adduce defence evidence. Making use of the said opportunity, Exts.D1 to D2(a) were marked on the side of defence. 8. The trial court held that evidence of PW1 coupled with Exts.P1 to P5 by established the transaction led to execution of the cheque and thereby giving benefit of presumptions under Section 118 and 139 of the NI Act, in favour of the complainant, the accused was convicted and sentenced as under: _“ In the result, the accused is sentenced to undergo imprisonment till rising of the court for the offence u/s.138 of Negotiable Instruments Act. Further, the accused is directed to pay Rs.75,000/(Rupees seventy five thousand only) to the complainant as compensation u/s.357(3) Cr.P.C. In default, to undergo simple imprisonment for three months.”_ **CRL.REV.PET NO. 1146 OF 2018** **5** 9. When the accused moved before the Appellate Court, as per judgment dated 10.07.2018 in Crl.A.No.317/2017, the learned Additional Sessions Judge also confirmed the conviction as well as the sentence imposed by the trial court. 10. While challenging concurrent verdicts of conviction as well as sentence, the learned counsel for the revision petitioner/accused pointed out one point, stating that the complainant is duty bound to prove his source of income while alleging borrowing of money by the accused by issuing a cheque. In the present case, during cross-examination, PW1 given evidence that even though he had given money from the business, the accounts of the business did not show the transaction. Therefore, the source of income as stated by PW1 is not believable and therefore, the conviction and sentence are liable to be set aside. 11. Opposing this contention, the learned counsel for the 1[st] respondent/complainant submitted that in this matter, admittedly the complainant is a person, who had been running a **CRL.REV.PET NO. 1146 OF 2018** **6** jewellery under the name and style 'M/s.Parthas Jewellery' and the complainant had no dispute with regard to the said business and therefore, the source of the complainant to advance Rs.75,000/- need not be disbelieved for any reason. Therefore, the conviction and sentence imposed by the trial court relying on the evidence of PWs1 and 2 as well as Exts.P1 to P5 and confirmed by the appellate court shall not be entertained in any manner. 12. As I have already pointed out, in this case, the evidence of PWs 1 and 2 and Exts.P1 to P5, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly. 13. The 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 **CRL.REV.PET NO. 1146 OF 2018** **7** 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. 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. 1146 OF 2018** **8** held above. 14. In this matter, admittedly, the complainant is a person, who had been running a jewellery under the name and style “Parthas Jewellery”. Therefore, in this case, the case put up by the complainant that he had given Rs.75,000/- to the accused for the purpose of release of pledged gold ornaments and to sell the same in the jewellery of the accused need not be disbelieved since the evidence given by PW1 supporting the transaction led to execution of Ext.P1 cheque is not shaken in any other manner during cross examination. 15. 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 Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda,** **CRL.REV.PET NO. 1146 OF 2018** **9** are on this point. 16. In fact, there is no reason to revisit the concurrent verdicts of conviction. Since the sentence imposed by the trial court is the least minimum possible, sentence also does not require any interference. 17. In the result, this revision petition must fail and is accordingly, dismissed. Since the transaction is of the year 2014, I am inclined to grant one month time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 18.08.2023 and the accused is directed to appear before the trial court on 19.08.2023 to pay the fine amount and to undergo the sentence. In default to do so, the trial court is directed to execute 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** nkr