Sajeev D v. State of Kerala

1 Crl R.P No. 428 of 2011 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 CRL.REV.PET NO. 428 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT ST 192/2008 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS - II, MAVELIKKARA CRA 506/2009 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA ``` ## **`REVISION PETITIONER/S:`** ``` SAJEEV D S/O.DAMODARAN PILLAI, VAZHIVILAYIL HOUSE,, KURATHIKADU PO,MAVELIKARA. ``` ``` BY ADV SRI.B.RENJITHKUMAR ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2SHAJI GEORGE, S/O.T.V.GEORGE VARIKKOLITHARA, PUTHEN BUNGLOW, BHARANICAVU, SOUTH MURI, KATTANAM, MAVELIKKARA.690 101 ``` ## **`OTHER PRESENT:`** ``` Smt Pushpalatha M.K, SENIOR PUBLIC PROSECUTOR- R1 ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl R.P No. 428 of 2011 **C.S DIAS,J. --------------------------Crl R.P No. 428 of 2011 ----------------------------Dated this the 19[th] day of September, 2023 ORDER** The revision petitioner has assailed the correctness and legality of the judgment of the Court of the Additional Sessions Judge-I, Mavelikkara (Appellate Court) in Crl A No.506/2009, which in turn confirmed the judgment passed by the Court of the Judicial First Class Magistrate-II, Mavelikkara (Trial Court) in ST No.192/2008, convicting the revision petitioner for an offence punishable under Sec.138 of the Negotiable Instruments Act ( in short, ‘N.I Act’). The revision petitioner was the accused and the second respondent was the complainant before the Trial Court. 3 Crl R.P No. 428 of 2011 ## **The factual background** 2. The revision petitioner and the second respondent were close friends. They were having monetary transactions. 2.1. The second respondent had filed CC No.485/2005 against the revision petitioner under Sec.138 of the N.I Act. During the pendency of the case, the parties arrived at a settlement and the revision petitioner had issued Ext P1 cheque for an amount of Rs.1,00,000/-, which got dishonoured by Ext P2 memo, due to insufficiency of funds in the revision petitioner’s bank account. Despite the second respondent issuing Ext P4 statutory notice to the revision petitioner, he failed to pay the amount. Hence, the revision petitioner committed the offence under Sec.138 of the N.I Act. 4 Crl R.P No. 428 of 2011 2.2. The second respondent filed the complaint before the Trial Court, which was taken cognizance of by the learned Magistrate. 2.3. On completion of the statutory formality contemplated under the Code of Criminal Procedure (in short, ‘Cr.P.C’), the complaint was posted for trial. **Trial** 2.4. The second respondent and a witness were examined as PWs 1 and 2 and Exts P1 to P9 were marked through them. The revision petitioner and a witness were examined as DWs 1 and 2. The statement of the revision petitioner was recorded under Sec.313 of the Cr.P.C. 5 Crl R.P No. 428 of 2011 ## **Trial Court judgment** 2.5. The Trial Court, after analysing the evidence and materials on record, convicted the revision petitioner for the offence under Sec.138 of the N.I Act and sentenced him to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.1,02,000/- to the second respondent, and in default to undergo simple imprisonment for a further period of four months. 2.6. Confronted with the said judgment, the revision petitioner filed Crl.A No.506/2009 before the Appellate Court. ## **Appellate Court judgment** 2.7. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment 6 Crl R.P No. 428 of 2011 confirmed the conviction, but modified the sentence by directing the revision petitioner to undergo simple imprisonment for a day (till the rising of the Court) and confirmed the compensation payable to the second respondent and the default sentence. 3. Aggrieved by the concurrent judgments passed by the courts below, the present revision petition is filed. 4. Heard; Sri.B. Renjith Kumar, the learned Counsel appearing for the revision petitioner and the learned Public Prosecutor appearing for the first respondent. 5. Although the revision petition was filed on 08.02.2011, this Court has not admitted the revision petition and has not suspended the execution of sentence. 7 Crl R.P No. 428 of 2011 6. Today, when the revision petition was taken up for consideration, the learned counsel appearing for the revision petitioner submitted that the revision petitioner is not questioning the correctness of the judgments and would be satisfied if this Court grants the revision petitioner a reasonable time period to pay the compensation amount. 7. The point is whether there is any illegality, irregularity or impropriety in the judgments of the courts below. 8. Before I delve into the legality and correctness of the impugned judgments, this Court reminds itself of the scope and purport of the revisional jurisdiction under Secs.397 to 401 of the Cr.P.C. 8 Crl R.P No. 428 of 2011 9. There is a profusion of precedential authority that the revisional power of this Court is to be sparingly exercised and in cases of exceptional rarity. The power is more in the nature of supervisory jurisdiction, to correct the miscarriage of justice, if any found. The revisional cannot be with power equated Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless and until there is patent illegality, which is shocking to the conscience of the Court. 10. In **Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and powers under Secs.397 to 401 of the Cr.P.C. 9 Crl R.P No. 428 of 2011 ## It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. 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 CrPC 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 glaringly 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 10 Crl R.P No. 428 of 2011 interfere with decision in exercise of their revisional jurisdiction.” 11. Coming back to the facts of the instant case. 12. Indisputably, the revision petitioner has not issued a reply notice substantiating his defence. Even though he let in defence evidence through DWs1 and 2, the same was not found inspiring. The courts below after analysing the evidence and materials on record have concurrently found that the revision petitioner has not shifted the reverse onus of proof casted on him under Section 139 of the N.I.Act. 13. A negotiable instrument, which includes a cheque carries the presumption of consideration under Secs.118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: 11 Crl R.P No. 428 of 2011 **“118. Presumptions as to negotiable instruments** – Until the contrary is proved, the following presumptions shall be made;- (a) **of consideration** -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; **139. Presumption in favour of holder.** —It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability. 14. A three-Judge Bench of the Hon’ble Supreme Court in **Rangappa vs. Sri.Mohan** [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of ‘reverse onus’, by holding thus: 12 Crl R.P No. 428 of 2011 “ 18. In light of these extracts, we are in agreement with the respondent - claimant that 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 (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 specifies 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. As clarified in the citations, the 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. 15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the 13 Crl R.P No. 428 of 2011 loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under S.138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant - accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction - related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction - expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. ## 15. Recently, a three-Judge Bench of the Hon’ble Supreme Court in **Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517]** has reiterated the legal position and doctrine of the reverse onus. It is 14 Crl R.P No. 428 of 2011 apposite to extract the relevant paragraphs, which declare the law on the point in the following legal terms: “14. 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 Section 118 and Section 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. This point of law has been crystalized by this Court in **Rohitbhai Jivanlal Patel v. State of Gujarat** (2019 (2) KHC 243).” 16. I have perused the records and found that the revision petitioner has not shifted the reverse onus of proof under Section 139 of the N.I.Act. Hence, taking 15 Crl R.P No. 428 of 2011 into account the submission made by the learned counsel for the revision petitioner that the revision petitioner is giving up all his contentions in the revision petition and is confining his prayer to only grant him some time to pay the compensation amount, I am not inclined to admit the revision petition at this distance of time. Accordingly, I confirm the concurrent findings of conviction and sentence of the courts below. However, I am inclined to grant the revision petitioner two months’ time to pay the compensation amount and undergo the sentence. In the result: ## (i) The revision petition is dismissed; 16 Crl R.P No. 428 of 2011 (ii) The conviction and sentence imposed by the Trial court and confirmed by the Appellate Court stands confirmed; (iii) The revision petitioner is directed to appear before the Trial Court on or before 19.10.2023, to undergo the sentence imposed by the Appellate Court and to pay the compensation amount as ordered by the Trial Court. (iv) In case of failure of the revision petitioner to appear before the Trial Court as ordered above, to undergo the sentence and to pay the compensation amount, the Trial Court is directed to execute the sentence without fail and realise the compensation amount, in accordance with law; 17 Crl R.P No. 428 of 2011 (v) The execution of the sentence shall stand deferred till 19.11.2023. (vi) The Registry is directed to forthwith forward a copy of this judgment to the Trial Court for compliance. sd/- sks/19.9.2023 **C.S.DIAS, JUDGE**