SANKARANARAYANAN v. STATE OF KERALA & TONY EMMATTY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH** **AGRAHAYANA, 1944** **CRL.REV.PET NO. 785 OF 2022** **AGAINST THE JUDGMENT DATED 08/07/2022 OF 1ST ADDITIONAL SESSIONS COURT, THRISSUR IN CRL.APPEAL NO.168/2021 MODIFYING THE JUDGMENT DATED 04/10/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - VII, THRISSUR IN ST NO.164/2017** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **SANKARANARAYANAN, AGED 82 YEARS, S/O. POOVATHUMKADAVIL RAMAN, HOUSE NO.2/24, KURIYACHIRA, THRISSUR - 680006** **BY ADV R.UMASANKAR** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT :** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 2 TONY EMMATTY, AGED 29 YEARS, S/O.EMMATTY LAZAR, NEAR LAW COLLAGE, AYYANTHOLE, THRISSUR - 680003 BY SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.12.2022, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING:** Crl.R.P.No.785 of 2022 -:2:- **A.BADHARUDEEN, J. -------------------------------------------------------Crl.R.P.No.785 of 2022** **-------------------------------------------------------Dated this the 15[th] day of December, 2022** ## **O R D E R** This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience) and the revision petitioner herein is the second accused in S.T.No.164 of 2017 on the files of the Judicial First Class Magistrate Court-VII, Thrissur. The respondents herein are the original complainant as well as the State of Kerala. 2. The revision petitioner impugns judgment in S.T.No.164 of 2017 dated 04.10.2021 and Crl.R.P.No.785 of 2022 -:3:- the judgment in Crl.Appeal No.168 of 2021 dated 08.07.2022 on the file of the I[st] Additional Sessions Court, Thrissur. 3. Heard the learned counsel for the revision petitioner/the second accused and the learned Public Prosecutor on admission. Notice to the second respondent/the original complainant stands dispensed with. 4. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. 5. Summary of the case put up by the complainant before the trial court is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for Crl.R.P.No.785 of 2022 -:4:- convenience), when cheque for Rs.5,00,000/- issued by the second and third accused for and on behalf of the first accused in discharge of the said sum alleged to be borrowed from the complainant on 27.11.2013, got dishonoured for want of funds. The first accused in this case is Winplast Polymer Products (P) Ltd. and accused Nos.2 and 3 are Managing Director and Director of the said company. The complainant raised contention before the trial court that soon after dishonour of the cheque, the complainant issued a lawyer notice to the accused intimating the dishonour of the cheque and demanding the amount covered by the cheque. Notice issued to the first accused returned unclaimed. The second and third accused accepted the notice. But they did not either send reply or pay the amount. Crl.R.P.No.785 of 2022 -:5:- 6. The trial court secured the presence of the accused for trial and tried the case. During trial, PW1 examined and Exts.P1 to P7 were marked on the side of the complainant. 7. Thereafter, the accused was given opportunity to adduce defence evidence after questioning them under Section 313(1)(b) of Cr.P.C. Thus, DW1 was examined and Exts.D1 and D1(a) were marked on the side of the accused. 8. The trial court relied on the evidence of PW1, supported by Exts.P1 to P7 to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque, so as to canvass the benefit of presumptions under Sections 118 and 139 of the NI Act in favour of the complainant. Law regarding presumptions is also settled as well. Crl.R.P.No.785 of 2022 -:6:- 9. 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 offence since the bouncing of a cheque is largely in the nature_ Crl.R.P.No.785 of 2022 -:7:- _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.”_ 10. 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 Crl.R.P.No.785 of 2022 -:8:- ## 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.”_ 11. 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.** Crl.R.P.No.785 of 2022 -:9:- ## **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 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.,_ Crl.R.P.No.785 of 2022 -:10:- _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.”_ 12. The trial court also negatived the contention raised by the accused that DW1, the second accused had a habit of keeping signed cheques to the tune of 10 to 20 in numbers in the account section of the office, in order to meet day to day affairs of the office and the complainant might have obtained Ext.P1 cheque signed and kept and the cheque lacks consideration. 13. Accordingly, the accused Nos.2 and 3 were convicted and sentenced under Section 255(2) of Cr.P.C. to undergo simple imprisonment for a period of one month and to pay a fine of Rs.2,50,000/- (Rupees Crl.R.P.No.785 of 2022 -:11:- Two lakh Fifty Thousand only) each for the offence under Section 138 of the NI Act. In default of payment of fine, simple imprisonment for a period of five months each was ordered. Fine was ordered to be paid as compensation to the complainant under Section 357(1) (b) of Cr.P.C. 14. On appeal, the learned Sessions Judge also concurred the finding of the appellate court, while modifying the substantive sentence of imprisonment to a day till rising of the court. 15. The learned counsel for the revision petitioner attempted to upset the concurrent findings of the trial court as well as the appellate court raising contention that the complainant miserably failed to prove the case beyond reasonable doubt and the courts below failed to appreciate the defence case put up by the complainant. Crl.R.P.No.785 of 2022 -:12:- 16. It is contended further that the courts below failed to consider that, Sub-section (2) to Section 141 of the NI Act states that notwithstanding anything contained in Sub-section(1), where a company has committed any offence under the Act, and it is proved that such an offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officers of the company, then such director, manager, secretary or other officers of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Sub-section (2) to Section 141 of the NI Act does not state that the persons enumerated, which can include an officer of the company, can be prosecuted and punished merely because of their status or position as a director, manager, secretary or Crl.R.P.No.785 of 2022 -:13:- any other officer, unless the offence in question was committed with their consent or connivance or is attributable to any neglect on their part. The onus under Sub-section (2) to Section 141 of the NI Act is on the prosecution and not on the person being prosecuted. 17. It is argued further that the complainant failed to incorporate necessary recitals that the revision petitioner/second accused was in charge and responsible for the affairs of the company in tune with the mandate of Section 141(2) of the NI Act. 18. Going by the judgments of the courts below, the contention raised in tune with the essentials as mandated under Section 141 of the NI Act had been argued before the appellate court, placing reliance on the decisions of the Hon'ble Supreme Court in **Dilip Hariramani Vs. Bank of** Crl.R.P.No.785 of 2022 -:14:- **Baroda** [2022 (3) KLT 373] and the decisions of this Court in **Babu Vs. State of Kerala** [2017 (4) KLT SN 33], **Kuruvilla K.Thomas Vs. State of Kerala** [2019 (4) KLT SN 46] and **Sarath Vs. Ramachandran** [2020(1) KLT 653]. 19. The learned Sessions Judge appraised the said contention in paragraph Nos.26 to 28 of the appellate judgment, while negativing the said contention. Paragraph Nos.26 to 28 of the judgment of the appellate court are extracted here under for easy reference: “26. I find that the factual situation in the present case is entirely different. This is a case where the complainant is represented by accused no.2 who is the Managing Director. The learned counsel for the accused contended that the complaint does not plead that accused no.2 is the Managing Director of the company. The said contention is incorrect because specific pleading in the said regard was incorporated in para no.1 of the amended Crl.R.P.No.785 of 2022 -:15:- complaint. Further, this is a case where the signatories to the cheque are accused nos.2 and 3. Ext.P1 shows that accused nos.2 and 3 signed Ext.P1 cheque in their capacity as Managing Director and Director respectively of the company. The said fact was admitted by DW1 in the cross-examination. In the above situation, the complainant had no burden to plead in the complaint that accused nos. 2 and 3 were responsible for the conduct of the business of the company. 27. In the above context, I rely upon the decision of the Hon'ble Supreme Court in S.M.S Pharmaceuticals Ltd. Vs. Neeta Bhalla ((2005) 8 SCC 89). Therein, the Hon'ble Supreme Court held that the Managing Director of a company will be in charge of the company and responsible to the company for the conduct of business and therefore, such a person gets covered u/s.141 of NI Act. It was further held that the signatory of a cheque which is dishonoured is responsible for the act and is governed by Sec.141(2) of the NI Act. In the case of such persons, it is not necessary to aver in the complaint that the said persons were in charge of and responsible for the business of the company. The said legal Crl.R.P.No.785 of 2022 -:16:- position was laid down by the Hon'ble High Court of Kerala in PNM Hospital Vs. HDFC Bank Limited (2017 (2) KLT 967). 28. The contention of the accused to the effect that the complaint is not maintainable due to absence of averments in the complaint with regard to the responsibility of accused 2 and 3 for the conduct of the business of the company has to be turned down.” 20. I could not find any illegality in the finding of the appellate court, while negativing the contention. The appellate court observed that accused Nos.2 and 3 signed Ext.P1 cheque in their capacity as Managing Director and Director of the company and during cross-examination, DW1, the second accused admitted the said aspect. Thus, it appears that the revision petitioner herein is a person, who being the Managing Director of the company, had issued cheque in favour of the complainant and the same got Crl.R.P.No.785 of 2022 -:17:- dishonoured. In such a case, the argument advanced by the learned counsel for the revision petitioner could not be countenanced as rightly found by the appellate court. 21. As regards to proof of transaction led to execution of the cheque, the trial court as well as the appellate court concurrently found in favour of the complainant, while negativing the case advanced by the accused believing the evidence of PW1. In fact, this contention and other contentions raised in the revision petition are matters which only be addressed by reappreciation of evidence and the power of this Court is not so wide enough to do the said exercise. 22. 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 reappreciate the evidence to have a contra finding. In Crl.R.P.No.785 of 2022 -:18:- 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 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_ Crl.R.P.No.785 of 2022 -:19:- _the oral evidence. ...”_ 23. 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 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_ Crl.R.P.No.785 of 2022 -:20:- _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.”_ 24. 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 Crl.R.P.No.785 of 2022 -:21:- 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, 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. 25. On evaluation of the matters available by exercising the limited power of revisional jurisdiction exercised by this Court, nothing substantiated to revisit the concurrent verdicts of the trial court and the appellate court. Therefore, the conviction and sentence stand confirmed. 26. Faced with the situation, the learned counsel for the revision petitioner/the second accused sought six months time to pay the fine amount. Considering the fine amount would come to Crl.R.P.No.785 of 2022 -:22:- Rs.5,00,000/- and in consideration of the fact that the transaction was in the year 2013, I am inclined to grant two months time from today to the second accused/revision petitioner to pay the compensation/fine. 27. In the result, this revision petition fails and it is, accordingly, dismissed. 28. However, the revision petitioner/the second accused is given two months time from today to pay the compensation and to undergo the sentence. Therefore, the revision petitioner/the second accused is directed to appear before the trial court on 14.02.2023 to pay the compensation and to undergo the sentence. The execution of the sentence shall stand deferred till 13.02.2023. On failure to do so, the trial court is directed to execute the sentence without fail. Crl.R.P.No.785 of 2022 -:23:- Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** rkj