Sanu C.D v. State of Kerala & Kerala Housing Finance Ltd

``` 11.08.2023 ``` 1 ## **`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. 538 OF 2023 ``` ``` AGAINST THE JUDGMENT IN CRA 92/2019 OF DISTRICT COURT & ``` ## **`SESSIONS COURT,KOLLAM`** ``` CC 209/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST ``` ## **`OFFENCES),PUNALUR`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SANU C.D AGED 47 YEARS S/O. DHARMARAJAN, SABU NIVAS, ACHENKOVIL, ARYANKAVU VILLAGE, PUNALUR TALUK, KOLLAM, PIN – 691305. BY ADVS. BIJU .C. ABRAHAM THOMAS C.ABRAHAM ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2KERALA HOUSING FINANCE LTD 2ND FLOOR, PAN AFRICAN PLAZA, M.G. ROAD, THIRUVANANTHAPURAM, PUNALUR BRANCH, REPRESENTED BY ITS KOLLAM BRANCH MANAGER, SHIHABUDEEN, IDICULA MEMORIAL BUILDING, PUNALUR, PIN – 691305. BY PUBLIC PROSECUTOR SRI M.P.PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.08.2023, THE COURT ON 11.08.2023 DELIVERED THE FOLLOWING: ``` Crl.R.P.No.538 of 2023 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.No.538 of 2023_ ================================ _Dated this the 11[th] day of August, 2023_ ## _**O R D E R**_ The revision petitioner, who is the sole accused in C.C.No.209/2012 on the files of the Judicial First Class Magistrate Court-II, Punalur, has filed this Revision Petition under Sections 397 and 401 of the Code of Criminal Procedure. The revision petitioner impugns judgment dated 14.05.2019 in the above case and judgment dated 13.03.2023 in Crl.A.No.92/2019 of the Sessions Court, Kollam, whereby the revision petitioner was found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the `N.I Act' for easy reference). 2. Heard the learned counsel for the revision petitioner Crl.R.P.No.538/2023 3 and the learned Public Prosecutor appearing for the 1st respondent. Notice to the 2nd respondent dispensed with. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 4. The case of the complainant in brief: The specific case put up by the complainant before the trial court was that the accused, herein availed loan of Rs.2,50,000/- on 24.04.2004 from the Punalur branch of the complainant company under housing loan scheme with offer to pay the same in instalments. The accused executed necessary documents agreeing to repay the same by monthly instalments. But he defaulted the monthly instalments. Accordingly as on 10.11.2009, Rs.4,97,307/was found due and for which the accused had issued cheque dated 10.11.2009 drawn on Syndicate Bank, Punalur. Thereafter the complainant presented the cheque for collection, but the same was dishonoured for want of funds. Thereafter, the complainant issued lawyer notice demanding payment of the cheque amount. Since the accused did not make the payment within the stipulated period in spite of receipt of notice, the complainant launched prosecution, Crl.R.P.No.538/2023 4 alleging commission of offence punishable under Section 138 of the N.I Act by the accused. 5. The trial court tried the matter. During trial, PW1 and PW2 examined and Exts.P1 to P12 were marked on the side of the complainant. 6. When opportunity was given to the accused to adduce evidence under Section 313(1)(b) of Cr.P.C, no defence evidence adduced. 7. On appraisal of the evidence, after hearing both sides, the trial court convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.4,98,500/- and in default of payment of compensation, simple imprisonment for a further period of two months also was imposed. The accused challenged the verdict of trial court before the Sessions Court, Palakkad and the learned Sessions Judge re-appreciated the evidence and confirmed the conviction as well as the sentence. Thus the concurrent finding of trial court as well as the appellate court in the matter of conviction Crl.R.P.No.538/2023 5 and sentence are under challenge in this Revision Petition. 8. While assailing the concurrent verdicts, the learned counsel for the revision petitioner reiterated the contentions raised before the trial court as well as the appellate court. According to him, even though the complainant alleges availing of loan to the tune of Rs.2,50,000/- on 24.04.2004, no documents placed to substantiate availing of loan and also the balance as alleged on the date of issuance of the cheque. He also submitted that a pertinent document produced to prove the loan transaction as Ext.P11 is a photocopy and therefore, it is inadmissible in evidence. Thus it is argued by the learned counsel for the revision petitioner that the complainant failed to prove the transaction led to execution of the cheque and therefore the courts below went wrong in convicting and sentencing the accused. 9. While addressing this contention, it is relevant to note that in order to prove the loan transaction, the complainant examined PW2 an authorised officer and it was through him, Ext.P6 resolution, Ext.P7 photocopy of the loan application, Ext.P8 photocopy of loan sanction offer letter, Ext.P9 photocopy of loan agreement executed, Crl.R.P.No.538/2023 6 Ext.P10 series of photocopy of 6 receipts, Ext.P11 photocopy of the loan statement and Ext.P12 photocopy of the loan ledger were tendered in evidence. It is relevant to note that among the documents Exts.P7 to P10 and Ext.P12, are photocopies and the same were tendered in evidence, after comparing the same with the original produced before the court. So the genuineness of Exts.P7 to P10 and P12 is not in dispute. Even though Ext.P11, the loan outstanding statement produced is photocopy, its marking was not opposed by the learned counsel for the accused. Thus it appears that the complainant not only proved issuance of cheque by the accused as on 10.11.2009 but also produced original documents to prove the loan transaction even though Ext.P11 is a photocopy showing the loan statement. However, marking of Ext.P11 was not opposed and as such the accused could not challenge its legality without opposing its marking when it was tendered in evidence. 10. On an overall evaluation of the evidence tendered it could be held that the complainant discharged its initial burden in the matter of availing loan of Rs.2,50,000/- by the accused on Crl.R.P.No.538/2023 7 24.04.2004 from the complainant by executing Exts.P7 to P11 documents and also issuance of Ext.P1 cheque in discharge of the balance outstanding as on 10.11.2009 for Rs.4,97,307/-. The trial court as well as the appellate court appreciated and re-appreciated the evidence in right perspective and found that the complainant had discharged its initial burden by proving the transaction led to execution of Ext.P1 cheque. As I have already pointed out, in this case, the evidence of PW1 and PW 2 and Exts.P1 to P12, 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. 11. 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 Crl.R.P.No.538/2023 8 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 : (2019) 4 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 (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. 12. In fact, the learned counsel miserably failed to substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available at this Court. 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 Crl.R.P.No.538/2023 9 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. 13. On perusal of the available evidence, nothing substantiated to find any illegality in the concurrent verdicts of conviction and sentence imposed by the trial court. Therefore this Revision Petition must fail. At this juncture, the learned counsel for the revision petitioner sought six months time to discharge the liability of the year 2004. But such long time cannot be allowed since the amount was in relation to a housing loan during 2004. 14. Accordingly, the Revision Petition stands dismissed. Since the transaction is of the year 2004, I am inclined to grant two months time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 10.10.2023 and the accused is directed to appear before the trial court on 11.10.2023, to pay the fine amount and to undergo the Crl.R.P.No.538/2023 10 sentence. 15. In default to do so, the trial court is directed to execute the sentence as per law without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_