Saleesh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 CRL.REV.PET NO. 662 OF 2022 AGAINST THE ORDER IN CRA 553/2019 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE ST NO.9/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ``` ## **`NADAPURAM`** ## **`REVISION PETITIONER/ACCUSED:`** ``` SALEESH AGED 42 YEARS, S/O. SOMAN RAHMATH HOUSE, PARTHIRAPARRA POST, VATTOLI VIA, VATAKARA TALUK, PIN - 673507 BY ADVS. KRISHNADAS P. NAIR K.L.SREEKALA HARIDAS P.NAIR M.A.VINOD M.RAJESH KUMAR SHINTO THOMAS BIJU VISWANATH ASWATHY ARJUNAN ANU PRABHAKAR ``` ## **`RESPONDENTS/COMPLAINANTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 ABDUL SALAM AGED 55 YEARS, S/O MAMMU, VANNARUKANDIYIL HOUSE, KUTTIADI POST, VATAKARA, PIN - 673508 SR.PP-SRI.RENJIT GEORGE`** ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.09.2022, THE COURT ON 17.10.2022 DELIVERED THE FOLLOWING: ``` ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 2 ``` ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.662 of 2022_ ================================ _Dated this the 17[th] day of October, 2022_ ## _**O R D E R**_ This is a Revision Petition filed under Sections 397 and 401 of the Code of Criminal Procedure challenging conviction and sentence imposed against the revision petitioner as per judgment dated 29.11.2019, who is the sole accused in S.T.No.9 of 2019 on the file of the Judicial First Class Magistrate-II, Nadapuram. On appeal, the learned Special Additional Sessions Judge (Marad Cases), Kozhikode confirmed the sentence by modifying the quantum as per judgment in Crl.Appeal No.553 of 2019 dated 06.07.2022. 2. The respondents in this revision petition are State of Kerala represented by Public Prosecutor as well as the original ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 3 ``` complainant before the trial court. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 5. Shown off unnecessary embellishments, the case put up by the complainant/the 2[nd] respondent herein before the court below is as under: It is alleged by the complainant that the accused borrowed Rs.2,80,000/- from the complainant as loan and issued a cheque bearing No.17799 dated 28.09.2017 for the repayment of the said sum with assurance of encashment. But when the cheque was presented for collection, the same was dishonoured for want of sufficient funds. Though legal notice intimating the dishonour and demanding the amount covered by the cheque was issued and accepted by the accused, he did not pay the amount. ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 4 ``` Accordingly, the complainant lodged prosecution alleging commission of offence under Section 138 of the Negotiable Instruments Act. 6. During trial, PWs 1 to 2 were examined and Exts.P1 to P5 were marked on the side of the complainant. 7. After questioning the accused under Section 313(1)(b) of Cr.P.C, DW 1 and 2 were examined and Exts.B1 to B2 were marked on the side of the accused. 8. On appreciation of the evidence, the trial court convicted the accused and sentenced the accused to undergo simple imprisonment for a period of six months and to pay compensation of Rs.2,80,000/- (Rupees Two lakh eighty ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 5 ``` thousand only) to the complainant under Section 357(3) of Cr.P.C and in default of payment of compensation, to undergo simple imprisonment for a further period of one month. On appeal, the learned Additional Sessions Judge also confirmed the said conviction while modifying the sentence, on re-appreciation of the evidence. 9. Though the learned counsel for the revision petitioner argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court, finally he conceded that the revision petitioner/accused will be satisfied with grant of 3 months' time to pay the compensation. 10. 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**_ ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 6 ``` ## _**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 jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”_ 11. 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 ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 7 ``` 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 nonconsideration 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_ on _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.”_ ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 8 ``` 12. 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 or fundamental violation of the principle of law, then only the power of revision would be made available. ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 9 ``` 13. In this case, as I have already pointed out, the trial court as well as the appellate court rightly appreciated the evidence given by PW1 and PW2 supported by Exts.P1 to P5 negativing the contention raised by the accused raising plea of ‘Alibi’ to hold that the accused herein issued Ext.P1 cheque after availing loan of Rs.2,80,000/-. Thereby the complainant proved his initial burden entitling him to get the benefit of presumptions under Sections 118 and 139 of the N.I Act. The defence case that has been put up by the accused is that he did not borrow any amount and he did not execute the cheque. The accused raised plea of Alibi on the submission that at the time of alleged transaction and execution of the cheque, he was employed at Santhigiri Shopping Mall, Thiruvananthapuram. Although DW2 was examined and Ext.B2 was marked to prove the plea of Alibi, the trial court as well as the appellate court hesitated to act upon the same, holding that Ext.B2 can be manipulated at any point of ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 10 ``` time. It is settled law that plea of Alibi shall be established by cogent and convincing evidence to rule out the possibility of the presence of the accused at the place of occurrence (transaction herein) and to prove that the accused was at the place where he was at the time of occurrence without iota of any doubt. In fact, for want of such evidence, the courts below negatived the plea of Alibi. Therefore, the concurrent verdicts of the courts below do not require any interference. Although DW1, the Bank Manager, was examined, in fact, his evidence was found against the accused, since DW1 given evidence that the signature of the accused in Ext.P1 cheque and B1, the specimen signature card available in the Bank are one and the same. 14. In appreciation of the law regarding presumptions, I would like to refer a 3 Bench decision of the . Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Mohan**_ In the above decision, the Apex Court ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 11 ``` ## 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 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_ ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 12 ``` _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.”_ 15. 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_ ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 13 ``` _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.”_ 16. 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 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_ ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 14 ``` _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 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.”_ 17. 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 ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 15 ``` the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. 18. 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. In the case on hand, it appears that the accused not succeeded in rebutting the presumption. Therefore, it has to be held that the courts below rightly convicted the accused for the offence punishable under Section 138 of the N.I Act. 19. Coming to sentence, the trial court imposed sentence to undergo simple imprisonment for six months and to pay a compensation of Rs.2,80,000/- (Rupees Two lakh eighty thousand only) to the complainant under Section 357(3) of Cr.P.C and in default of payment of compensation, to undergo simple imprisonment for a period of one month, but the appellate court also confirmed the conviction by modifying ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 16 ``` the sentence for payment of fine of Rs.3,50,000/- to the complainant under Section 357(1) Cr.P.C. and in default, simple imprisonment for one month. 20. Since the sentence is the minimum possible, there is no reason to reduce the sentence also. 21. In the result, this Revision Petition fails and is accordingly, dismissed. Considering the request of the learned counsel for the revision petitioner/accused, two months' time from today is granted to pay the compensation. Therefore, the revision petitioner/accused is directed to appear before the trial court on 16.12.2022 to pay the fine or to undergo the default sentence on 16.12.2022. In default to do so, the trial court is directed to execute the sentence as per law without fail. ``` 17 ``` ## **`Crl.Rev.Pet.No.662 of 2022`** The execution of the sentence shall stand deferred till 15.12.2022. **Sd/A. BADHARUDEEN, JUDGE** ``` nkr ``` ``` Crl.Rev.Pet.No.662 of 2022 ``` ``` 18 ``` ## **`APPENDIX OF CRL.REV.PET 662/2022`** ``` PETITIONER ANNEXURES Annexure ATHE TRUE COPY OF THE ORDER IN S.T. NO. 9/2019 OF JUDICIAL FIRST CLASS MAGISTRATE-II, NADAPURAM DATED 29.11.2019 Annexure BTHE CERTIFIED COPY OF THE ORDER IN CRL.A.NO.553/2019OFSPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE DATED 06.07.2022. ```