Sachu M. John v. Vargheese George 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 OCTOBER 2022 / 27TH ASWINA,** ## **1944** **CRL.REV.PET NO. 247 OF 2019** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.405/2007 DATED 30.06.2008 OF ADDITIONAL DISTRICT COURT-II, MAVELIKKARA CC 352/2005 DATED 25.10.2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHENGANNUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SACHU.M.JOHN, AGED 30 YEARS, D/O TV ABRAHAM, PUTHENVEETIL GRACE BHAVANANAM, ANGDICKAL THEKKUMURI, CHENGANNUR VILLAGE BY ADV O.D.SIVADAS** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :** **VARGHESE GEORGE 1 S/O PT GEORGE, AGED 49 YEARS, AMAYAIL PUTHEN VEEDU, KADAPARA, KUMBANADU MURI, KOZHENCHERRY. STATE OF KERALA, REP.BY THE CHIEF SECRETARY, 2 THIRUVANANTHAPURAM THROUGH ADDL.PUBLIC PROSECUTOR, MAVELIKARA. BY ADV SRI.K.N.RADHAKRISHNAN BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR** **ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.R.P. NO.247 OF 2019** **2** ## **Crl.R.P.No.247 of 2019** **-------------------------------------------** ## **O R D E R** This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience). The revision petitioner is the accused in C.C.No.352 of 2005 on the file of the Judicial First Class Magistrate Court-II, Chengannur. The respondents herein are the original complainant as well as the State of Kerala. 2. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. 3. Short facts of the case are as under: The case put up by the complainant before the trial court is that the accused borrowed an amount of Rs.2,00,000/- from the complainant for his personal **CRL.R.P. NO.247 OF 2019** **3** purpose, agreeing to repay the same within a short period. Subsequently, on demand of the said amount, the accused issued cheque for Rs.2,00,000/- dated 10.12.2003 drawn on Federal Bank Ltd., Chengannur Branch. When the cheque was presented for collection, the same was returned unpaid, for want of funds. Though legal notice was issued demanding the said amount, the accused did not pay the amount. Accordingly, the complainant initiated prosecution under Section 142 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience) alleging commission of offence punishable under Section 138 of the NI Act. 4. The trial court secured the presence of the complainant for trial and recorded evidence of the complainant as PW1 and marked as Ext.P1 to P5. 5. When the accused was given opportunity **CRL.R.P. NO.247 OF 2019** **4** to adduce defence evidence, after questioning him under Section 313(1)(b of Cr.P.C., after denying the incriminating circumstances against him, the accused got examined his driver as DW1. 6. The trial court appreciated the evidence negativing the contention raised by the accused that the cheque was somehow obtained by one Manoj K Abraham and misused for the purpose of this case and affirming the case put up by the complainant. Consequently, the accused was convicted for the offence punishable under Section 138 of the NI Act and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.2 lakh as compensation and the same was ordered to pay to the complainant. In default of payment of fine, simple imprisonment for three months also was imposed. 7. The accused challenged the conviction and **CRL.R.P. NO.247 OF 2019** **5** sentence imposed by the trial court, as per judgment dated 25.10.2006, by filing Crl.Appeal No.405 of 2007 before the Additional Sessions Court-II, Mavelikkara. After hearing both sides and on re-appreciating the evidence, the learned Sessions Judge dismissed the appeal and confirmed the conviction and sentence. 8. The accused, who raised challenge against the concurrent verdicts entered into by the trial court as well as the appellate court, argued that no offence under Section 138 of the NI Act would attract in the facts of the given case, since there is no legally enforceable debt and the execution of the cheque was not proved. It is argued further that the cheque was somehow obtained by the accused and later manipulated this case. 9. Whereas, the learned counsel for the first respondent would submit that the complainant given evidence as PW1 in categorical terms that the accused **CRL.R.P. NO.247 OF 2019** **6** borrowed Rs.2,00,000/- as loan, in repayment of the said sum, Ext.P1 was issued and the said evidence was not shaken during cross-examination. Therefore, the courts below given emphasis to the evidence of PW1 to hold that the complainant proved the transaction, passing of consideration and execution of Ext.P1 cheque. Accordingly, the trial court imposed conviction and sentence and none of the contentions raised by the accused is of now avail, when the legality of the concurrent findings being considered by this Court, by exercising power of revision. 10. Having appraised the argument that has been put up by the learned counsel for the accused, in fact, the contentions can be revisited by appreciating evidence. In fact, those contentions were appraised by the trial court and the appellate court having powers of appreciation or re-appreciation of evidence. Therefore, **CRL.R.P. NO.247 OF 2019** **7** those contentions cannot be considered by this Court, by exercising power of revision. 11. True that this Court is conferred with the power of revision and the revisional power is not akin to power of the appeal. 12. 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. 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_ **CRL.R.P. NO.247 OF 2019** **8** _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 reappreciating the oral evidence. ...”_ 13. 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 **CRL.R.P. NO.247 OF 2019** **9** ## 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 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.”_ 14. 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 **CRL.R.P. NO.247 OF 2019** **10** 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, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 15. In this matter, inorder to prove that the cheque was issued to one Manoj K.Abraham, DW1, the driver of the accused got examined. The evidence of DW1 as reitereated by the courts below would go to show that he had admitted issuance of cheque towards liability and the story of procurement of cheque by the complainant **CRL.R.P. NO.247 OF 2019** **11** by other means could not be believed. 16. In this case, the trial court and the appellate court on relying on the evidence of PW1 and Exts.P1 to P5 categorically held that the said evidence established the transaction led to execution of Ext.P1. Therefore, the complainant would get the benefit of twin presumptions under Sections 118 and 139 of the NI Act. Law regarding presumptions is also settled as well. 17. In this 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 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_ **CRL.R.P. NO.247 OF 2019** **12** _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 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_ **CRL.R.P. NO.247 OF 2019** **13** _his/her own.”_ 18. 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 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.”_ **CRL.R.P. NO.247 OF 2019** **14** 19. 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 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_ **CRL.R.P. NO.247 OF 2019** **15** _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 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.”_ 20. 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 presumption 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 **CRL.R.P. NO.247 OF 2019** **16** presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. 21. Coming to the facts of this case, as I have already pointed out, the evidence tendered by the accused to rebut the presumptions found to be insufficient by the courts below. Therefore, there is no reason to interfere in the concurrent finding of conviction entered into by the trial court as well as the appellate court. 22. Therefore, the conviction stands confirmed. 23. Regarding the sentence, the trial court imposed imprisonment for a period of three months under Section 138 of the NI Act and to pay compensation of Rs.2,00,000/-. Default imprisonment for a period of three months also imposed. Since the offence alleged to be committed by the accused is a deemed one, sentence can **CRL.R.P. NO.247 OF 2019** **17** be modified, as canvassed by the learned counsel for the accused. Therefore, the substantive sentence of imprisonment imposed by the trial court and confirmed by the appellate court for a period of three months stands modified to a day till rising of the Court and to pay fine of Rs.2,00,000/- and the fine is ordered to be paid as compensation to the complainant under Section 357(1) (b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of three months. 24. The Revision petitioner/accused is directed to surrender before the trial court within two weeks, i.e., on or before 02.11.2022 from today to undergo the sentence modified by this Court and to pay the fine. On failure to do so, the trial court is directed to execute the modified sentence as per law without fail. **CRL.R.P. NO.247 OF 2019** **18** Registry is directed to forward a copy of this order to the court below concerned for information. Sd/- **A. BADHARUDEEN JUDGE** rkj