Sakthidharan v. Sree Gokukam Chit and Finance Company Pvt. Ltd and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945** **CRL.REV.PET NO. 295 OF 2023** **JUDGMENT IN ST 950/2017 DATED 25.01.2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD CRA 47/2020 DATED 8.12.2022 OF ADDITIONAL SESSIONS COURT - V,** ## **PALAKKAD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SAKTHIDHARAN. AGED 33 YEARS, S/O. GOPALAKRISHNAN, SAKTHI AUTO GARAGE, BEHIND PETROL PUMP, SELVAPURAM BYE-PASS ROAD, COIMBATORE, PIN - 641008 BY ADVS.K.ANANDN.RAJESH (PALAKKAD)BENNY ANTONY PARELAMEER SALIM ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** 1 SREE GOKUKAM CHIT AND FINANCE COMPANY PVT. LTD OPP. KSRTC BUS STAND, SHORNUR ROAD, PALAKKAD. REP. BY ASST. MANAGER, K.K. SUBASH, S/O KRISHNAN, PULUNELLI, PALAKKAD, PIN - 678572 2 STATE OF KERALAREPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV MAHESH V RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 **CRL.REV.PET NO.295 OF 2023** ## **ORDER** ## _**Dated this the 11[th] day of August, 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). The revision petitioner is the accused in S.T.Case No.950/2017 on the files of the Judicial First Class Magistrate Court-I, Palakkad. He impugns the judgment dated 25.01.2020 in S.T.Case No.950/2017 as well as the judgment in Crl.Appeal No.47/2020 dated 08.12.2022 on the files of the Additional Sessions Court-V, Palakkad. Respondents 1 and 2 herein are complainant as well as State of Kerala. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first respondent defacto complainant and the learned Public Prosecutor. 3. I shall refer the parties in this revision petition as to their status before the trial court as `complainant' and `accused', for convenience. 4. The brief facts of the case put up by the complainant before the trial court are as under: The brother of the accused was a subscriber of chit bearing No.G2H/5509/KDM with ticket No.10 having monthly subscription 3 **CRL.REV.PET NO.295 OF 2023** of Rs.25,000/- for twenty months run by the complainant. His brother participated in the auction, prized the chit, received the chit amount and had defaulted in making monthly instalments. When balance amount of Rs.1,00,300/- being principal and Rs.3,008/- towards interest was due, in order to discharge the said liability, the accused had issued cheque dated 24.01.2017 for Rs.1,03,308/- drawn on South Indian Bank Elapully Branch. On presentation of the cheque for collection, the same was dishonoured with endorsement ‘funds insufficient’. Despite having issued notice of demand by the complainant, the said amount was not paid. On this premise, complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the N.I.Act’ hereinafter) was registered. 5. The trial court secured presence of the accused and complainant for trial and tried the matter. During trial, complainant got examined as PW1 and PW2 and Exts.P1 to P9 were marked. On completion of prosecution evidence, accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence. On the side of defence DW1 was examined and marked Ext.D1. 4 **CRL.REV.PET NO.295 OF 2023** 6. The trial court appreciated the evidence based on arguments tendered by both sides and finally convicted and sentenced the accused as under: _“ In the result, accused is sentenced to undergo imprisonment for a period of two months and to pay fine of Rs.1,03,308/- (Rupees One Lakh Three Thousand Three Hundred and Eight only). In default of payment of fine he shall undergo simple imprisonment for two months. The fine amount if realised shall be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C.”_ 7. The accused challenged the judgment of the trial court before the Appellate Court. As per judgment dated 08.12.2022 in Crl.Appeal No.47/2020, the learned Additional Sessions Judge-V, Palakkad, re-appreciated the evidence and concurred with the conviction, by modifying sentence for a day till the rising of the court and set aside two months' default imprisonment. The accused was also given five months' time i.e., till 21.04.2023 for payment of the fine amount, failing which the trial court shall take steps for execution of the sentence. 8. The learned counsel for the accused reiterated the contention raised before the trial court as well as the appellate court on the submission that the cheque was not issued by the accused in favour of the complainant and it was lost. 5 **CRL.REV.PET NO.295 OF 2023** Accordingly, the accused given a letter to the Branch Manager, South Indian Bank regarding loss of cheque, who was examined as DW1, and Ext.D1 reply dated 09.09.2019 was tendered in evidence through the Bank Manager. It is relevant to note that even though the accused has a case that Ext.P1 cheque which is the subject matter of this lis is one lost, at present, the same is at the hands of the complainant and the accused did not file any complaint before the police regarding loss of cheque or anything, soon after the alleged loss. It appears that as per the evidence of PW1 and PW2 supported by Exts.P1 to P9, the accused herein stood as guarantor for a chitty transaction pertaining to his brother and accordingly, he had issued the cheque to discharge the liability and courts below believed the evidence of PW1 and PW2 and Exts.P1 to P9 produced by the complainant to discharge his initial burden in the matter of transaction led to execution of the cheque. Thereby benefit of twin presumptions were given in favour of the complainant. Thereafter the courts below found that the accused failed to rebut the presumptions and accordingly, they were convicted and sentenced. 9. As I have already pointed out, in this case, the evidence of PW1, supported by PW2 and Exts.P1 to P9, 6 **CRL.REV.PET NO.295 OF 2023** 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. In fact nothing substantiated to rebut the presumptions. 10. No doubt, 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 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 : 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**_ 7 **CRL.REV.PET NO.295 OF 2023** _**(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 held above. 11. In fact, the learned counsel miserably failed to substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available to this Court. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C read with 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**_ , are on this point. 12. Considering the matter within the limited power of revision, nothing substantiated to unsettle the concurrent 8 **CRL.REV.PET NO.295 OF 2023** verdicts in any manner. Therefore, this revision fails and the same is dismissed. However, learned counsel for the defacto complainant conceded four months’ time to pay the fine amount even though the learned counsel for the accused sought six months’ time. 13. Considering the request of the learned counsel for the accused, I am inclined to grant four months’ time from today, to the accused to pay the compensation and therefore, imposing of sentence shall stand deferred till 11.12.2023 and the accused is directed to appear before the trial court on 12.12.2023, either to pay the fine amount or to undergo the default sentence. If the accused fails to appear as directed, the trial court is directed to execute the sentence, as per law. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** csl