S. Asokan v. State of Kerala and Rajan S/o Govindan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 CRL.REV.PET NO. 814 OF 2023** **AGAINST THE CONVICTION AND SETNENCE IN CRL.APPEAL NO.152/2022 ON THE FILE OF THE SESSIONS COURT, THIRUVANANTHAPURAM AND IN C.C.NO.1534/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V (SPECIAL COURT FOR MARK LIST CASES) THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **S. ASOKAN S/O SADHASIVAN, AGED 64 YEARS, MCP HOUSE, TC NO. 68/12, EDAYAR, THIRUVALLAM P.O., THIRUVANANTHAPURAM, PIN - 695027 BY ADVS. R.HARIKRISHNAN (H-308) G.SUDHEER SMRITHI S.S.** ## **RESPONDENTS/RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 RAJAN S/O GOVINDAN NAIR, AGED 60 YEARS, PROPRIETOR, NAYANA WOOD INDUSTRIES, AMBALATHARA, RESIDING AT SAJANALAYAM, TC NO. 63/1564, AMBALATHARA, THIRUVANANTHAPURAM, PIN - 695026** **PP - M P PRASANTH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No. 814 of 2023 2 ## **ORDER** ## **Dated this the 16th day of August, 2023** This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in C.C. No.1534/2016 on the files of the Judicial First Class Magistrate Court-V (Special Court for Mark List Cases), Thiruvananthapuram and the appellant in Crl.A. No.152/2022 on the files of the Court of the Sessions Judge, Thiruvananthapuram. The respondents herein are the original complainant as well as State of Kerala. 2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State. Notice to the 2[nd] respondent/complainant stands dispensed with. 4. In this matter, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Crl.R.P No. 814 of 2023 3 Instruments Act (hereinafter referred as N.I.Act for convenience), when cheque for Rs.1,25,000/- dated 04.08.2016 was dishonored due to the reason “no sufficient fund”. Since the accused failed to make the payment on demand, the complainant lodged complaint under Section 142 of the N.I.Act. 5. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PWs 1 and 2 examined and Exts.P1 to P6 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, no witness examined and no exhibits marked in the side of the defense. 6. Thereafter, the trial court appraised the evidence and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment till rising of the Court and to pay fine of Rs.1,92,500/-. The fine was ordered to be paid as compensation to the complainant and in default of payment of fine, simple imprisonment for a further period of three months also was imposed. Crl.R.P No. 814 of 2023 4 7. Although, the accused challenged the conviction and sentence imposed by the trial court, before the Sessions Judge, the learned Sessions Judge also confirmed the concurrent verdicts of sentence and conviction imposed by the trial court. 8. While assailing the concurrent verdicts of conviction and sentence imposed by the trial court as well as the Appellate Court, the learned counsel for the accused/revision petitioner would submit that even though the cheque is in the name of M/s Nayana Wood Industries, the firm is not arrayed as an accused. It is also submitted that, though the said contentions were raised before the trial court as well as the Appellate Court, the same were not considered by the trial court as well as the Appellate Court. 9. On perusal of a copy of Ext.P1 cheque placed by the learned counsel for the accused/revision petitioner, it could be gathered that the same was issued to pay towards M/s Nayana Wood Industries and the signatory of the cheque is the proprietor of the firm. On perusal of the copy of the complaint and the legal notice issued, it has been specifically narrated therein that the complainant issued notice and later Crl.R.P No. 814 of 2023 5 filed complaint being the proprietor of M/s Nayana Wood Industries against the accused. In fact, a proprietary concern can be represented by the proprietor and the proprietary concern is not a company or a partnership firm defined under Section 141 of the N.I. Act. Therefore, the arguments at the instance of the learned counsel for the accused/revision petitioner is found to be not tenable. 10. In this matter, the trial court as well as the Appellate Court given emphasis to the evidence of PWs 1 and 2 and Exts.P1 to P6 to support the transaction led to execution of Ext.P1 cheque, since the same were not shaken during the cross-examination and accordingly it was held that the complainant discharged his initial burden in the matter of transaction and execution of the cheque. It is relevant to note that during cross-examination of PWs 1 and 2, the suggestion at the instance of the accused was that the cheque was issued as security and no other serious contentions raised. Therefore, the Courts below rightly given benefit of twin presumptions in favour of the complainant under Sections 118 and 139 of the N.I.Act. 11. Law regarding presumption is well settled. In this Crl.R.P No. 814 of 2023 6 connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Sri.Mohan**_ . In the above decision, the Apex Court considered the presumption available to a complainant in a prosecution punishable 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 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_ Crl.R.P No. 814 of 2023 7 _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.”_ 12. In the decision reported in [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**_ , the Apex Court while dealing with a case where the accused has a contention that Crl.R.P No. 814 of 2023 8 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.”_ 13. 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], _**M/s.Kalamani Tex & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Crl.R.P No. 814 of 2023 9 ## 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 2[nd] 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_ Crl.R.P No. 814 of 2023 10 ## _this Court held that:_ _“Even a blank cheque leaf, voluntarily signed 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.”_ 14. The learned counsel for the accused/petitioner argued that even though the cheque is in the name of M/s Nayana Wood Industries, the firm is not arrayed as an accused. Though, this contention was raised before the Courts below, the Courts below negatived the same, relying on the evidence of PWs 1 and 2 and Exts.P1 to P6 and thereby the benefit of twin presumptions under Sections 118 and 139 of the N.I. Act was adjudged in favour of the complainant. In fact, nothing substantiated to revisit the concurrent findings, by exercising the limited power of revision available to this Court. 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 Section 397, which is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the Crl.R.P No. 814 of 2023 11 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_ Crl.R.P No. 814 of 2023 12 _jurisdiction in interfering with the conviction of the respondent by 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 of the Magistrate unless it is perverse or wholly unreasonable or 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 non-consideration 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_ Crl.R.P No. 814 of 2023 13 _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 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 nonconsideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the Crl.R.P No. 814 of 2023 14 principle of law, then only the power of revision would be made available. 18. In fact, nothing substantiated in this revision petition to interfere with the concurrent findings of conviction as well as sentence of imprisonment, in any manner. 19. In the result, this revision petition fails and is accordingly dismissed. 20. Faced with the situation, the learned counsel for the petitioner sought for six months time to pay the compensation. Considering the fact that, the cheque is of the year 2016 and the amount as Rs.1,92,500/-, I am inclined to grant three months time to the accused from today to pay the fine/compensation and to undergo the sentence. 21. Therefore, the revision petitioner/accused is directed to surrender before the trial court on 16.11.2023 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender, as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 15.11.2023. Crl.R.P No. 814 of 2023 15 Registry is directed to forward a copy of this order to the trial court for information and compliance within seven days. **Sd/-** **A. BADHARUDEEN JUDGE** SK