Sajith Sebastian v. State of Kerala and Anu

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 ``` ## **`CRL.REV.PET NO. 641 OF 2022`** ``` CRL.A.NO.436/2018 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU CASES)KOZHIKODE ``` ``` CC.NO.1384/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SAJITH SEBASTIAN AGED 51 YEARS S/O.DEVASSI, PUTHUSSERI HOUSE, KANHOOR P.O, ANGAMALY, ERNAKULAM DISTRICT. PIN - 683575 BY ADV. SOJAN MICHEAL ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI- 682031 2ANU W/O. P.V SREENIVASAN, MOOTHEDATHU HOUSE, ARANGOTTUKARA AMSOM & DESOM, THALAPILLI TALUK, THRISSUR DISTRICT, PIN - 680582 ``` ``` R1 BY PP-SRI.G.SUDHEER R2 BY ADVS. ROBSON PAUL K.A.SREEJITH(K/252/1992) ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 2 ``` ## ORDER This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter). The revision petitioner is the accused in C.C.No.1384/2016, on the file of the Judicial First Class Magistrate Court – I, Kozhikode. He impugns the said judgment as well as the judgment in Crl.A.No.436/2018, dated 28.2.2022 arising therefrom. 2. I shall refer the parties in this Revision Petition as to their status before the trial court as `complainant' and `accused'. 3. The summary of the case put up by the complainant is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter), on the premise that Cheque for Rs.15,00,000/- (Rupees Fifteen Lakhs only), dated 16.7.2016, alleged to be issued by the accused, to repay the said sum was dishonoured, for want of sufficient funds. 4. The trial court took cognizance of this matter and secured the presence of the accused for trial. During trial, PW1 and PW2 examined and Exts.P1 to P8 marked on the side of the complainant. After conclusion of the ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 3 ``` prosecution evidence, the accused was given opportunity to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C. 5. Making use of the said opportunity, DW1 and DW2 were examined and Exts.D1 to D7 were marked on the side of defence. 6. The learned Magistrate appraised the evidence and finally found that that the complainant discharged his initial burden in the matter of transaction which led to execution of Ext.P2 cheque in consequence of Ext.P1 agreement dealing with the said transaction. Accordingly, benefit of presumptions also given in favour of the complainant. Thereafter, the trial court convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.15,00,000/-. Fine was ordered to be given as compensation under Section 357(1)(b) of the Cr.P.C. Default imprisonment for a period of two months also was imposed for non payment of fine. 7. Challenging the judgment of the trial court, the accused preferred appeal before the appellate court, which was once dismissed for non-prosecution and thereafter, this Court remanded the matter, when the order of dismissal for non-prosecution was challenged before this Court in revision as Annexure A4 Revision Petition, viz., Crl.R.P.No.1328/2019, dated 20.12.2021. ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 4 ``` 8. It is submitted by the learned counsel for the accused/revision petitioner that during the pendency of appeal, an agreement entered into between the parties and thereby, the matter has been settled for a sum of Rs.12,00,000/-. Out of which, Rs.3,00,000/- was paid and it was covenanted in the agreement that the remaining amounts at the rate of Rs.3,00,000/- each would be paid on 5.5.2019 and 30.9.2019. Further, the remaining amount was agreed to be adjusted from the deposit made by the accused before the trial court, in view of the direction given by the appellate court. 9. Though it has been argued specifically highlighting payment of Rs.9,00,000/- (Rs.3,00,000/- each as aforesaid), the learned counsel for the complainant vehemently opposed receipt of any money apart from Rs.4,00,000/-, paid at the time of the agreement. 10. In appeal, the accused produced the said receipts also with a petition to receive the same and the same was dismissed by the appellate court, holding that subsequent payments would not improve the case of the accused. 11. In this matter, the subsequent payment is not established in any manner to the manner known to law. This Court, while considering the power of revision, cannot adduce evidence in a case where the so called repayments on ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 5 ``` the basis of the agreement was zealously disputed by the complainant. However, the admitted payment of Rs.4,00,000/- on the basis of the agreement can be given adjustment while considering payment of fine as a matter of sentence. 12. Since the agreement is not fully acted upon, no question of compounding arise in this matter. 13. In this matter, the trial court as well as the appellate court appreciated and re-appreciated the evidence and entered into conviction and sentence. Apart from some sort of discharge in the matter of payment of fine, nothing argued to substantiate that the concurrent verdicts in any way suffer from any infirmity so as to have interference by this Court by exercising the limited power of revision. 14. 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 ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 6 ``` 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 reappreciating the oral evidence. …” 15. 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 ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 7 ``` 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.” 16. The said ratio has been followed in a latest decision of the Supreme . Thus Court reported in [(2018) 8 SCC 165], _**Kishan Rao v. Shankargouda**_ 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 ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 8 ``` be made available. 17. In this case, I have already pointed out the trial court as well as the appellate court given benefit of presumptions under Sections 118 and 139 of the NI Act in favour of the complainant on the finding that the complainant discharged his initial burden in the matter of execution of Ext.P2 cheque with passing of consideration. Law regarding presumption is also well settled by law. 18. 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 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 ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 9 ``` 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.” 19. 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 ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 10 ``` 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.” 20. 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. 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. ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 11 ``` …................ 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.” 21. Thus, on evaluation of the available materials, nothing available before this Court to accept the concurrent verdicts for conviction. However, in view of the admitted fact that Rs.4,00,000/- out of the total amount was received, the sentence requires modification not only for that purpose, but to reduce the substantive sentence of one year, in the interest of justice. 22. In the result, this revision petition is allowed in part. The conviction stands confirmed and the sentence stands modified, whereby the accused/revision petitioner is sentenced to undergo imprisonment for a day till rising of the court and to pay a fine of Rs.11,00,000/- (Rupees Eleven Lakhs only) ``` CRL.REV.PET NO. 641 OF 2022 ``` ``` 12 ``` and the said amount shall be given as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. In default of payment of fine, the accused shall undergo imprisonment for a period of 4 months. 23. It is specifically made clear that, if any amount deposited before the trial court or the appellate court by orders of the court or otherwise, the same shall be adjusted appropriately while considering payment of fine/compensation. In this context, the learned counsel for the accused/revision petitioner sought for 4 months time to pay the balance amount. The learned counsel for the complainant suggested reasonable time in the discretion of this Court. Therefore, the accused/revision petitioner is directed to surrender before the trial court to undergo the sentence on or before 20.2.2023. Till then, the execution of sentence shall stand deferred. Sd/- A. BADHARUDEEN JUDGE Bb ``` CRL.REV.PET NO. 641 OF 2022 13 ``` ## **`APPENDIX OF CRL.REV.PET 641/2022`** ``` PETITIONER’S ANNEXURES ANNEXURE 1COPY OF THE AGREEMENT DATED 25.03.2019 ANNEXURE 2COPY OF THE RECEIPT DATED 03.05.2019 ANNEXURE 3COPY OF THE RECEIPT DATED 05.09.2019 ANNEXURE 4COPY OF THE JUDGMENT IN CRL.R.P NO: 1328/2019 DATED 20.12.2021 ANNEXURE 5COPY OF THE COMPOUNDING PETITION DATED 05.09.2019 GIVEN TO REVISION PETITIONER BY THE HUSBAND OF THE 2ND RESPONDENT AT THRISSUR ON 05.09.2019 ANNEXURE 6COPY OF THE COMPOUNDING APPLICATION KEPT IN THE OFFICE FILED OF CRL.R.P NO: 1328/2019 DATED 05.09.2019 ``` ``` RESPONDENTS’ ANNEXURES ``` ``` NIL ``` //TRUE COPY// PA TO JUDGE