Satheesh Babu v. Antony Lancy & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 CRL.REV.PET NO. 639 OF 2022** **AGAINST THE JUDGMENT DT.30.11.2021 IN CRA 309/2020 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ST 3085/2017 OF JMFC, KALAMASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SATHEESH BABU AGED 55 YEARS SON OF SIVADASAN NAIR, MANGALATH HOUSE, MANJUMMEL P O, ERNAKULAM DISTRICT, PIN – 686501 BY ADV LIFFY P. FRANCIS ## **RESPONDENT/RESPONDENTS/COMPLAINANT & STATE:** 1 ANTONY LANCY AGED 47 YEARS SON OF PETER, PALAYATHIL HOUSE, MANJUMMEL P O, ERNAKULAM DISTRICT, PIN – 683501 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 BY ADVS. SALMANUL FASIL O.P. K.A.RASHEED(R-799) SENIOR PUBLIC PROSECUTOR SRI T.R.RENJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22.09.2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING ALONG WITH CRRP.640/2022: Crl.R.P.NoS.639 & 640 of 2022 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 CRL.REV.PET NO. 640 OF 2022** **AGAINST THE JUDGMENT DATED 30.11.2021 IN CRA 308/2020 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ST 2850/2017 OF JMFC, KALAMASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SATHEESH BABU AGED 55 YEARS SON OF SIVADASAN NAIR, MANGALATH HOUSE, MANJUMMEL P O, ERNAKULAM DISTRICT, PIN – 686501 BY ADV LIFFY P. FRANCIS ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** 1 ANTONY LANCY, AGED 47 SON OF PETER, PALAYATHIL HOUSE, MANJUMMEL P O, ERNAKULAM DISTRICT, PIN - 683501 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.09.2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING ALONG WITH CRRP.NO.639/2022: Crl.R.P.NoS.639 & 640 of 2022 3 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P.Nos.639 and 640 of 2022_ ================================ _Dated this the 30[th] day of September, 2022_ ## _**COMMON ORDER**_ These Revision Petitions have been filed under Section 397 and 401 of Cr.P.C challenging the common judgment in S.T.No.2850/2017 and S.T.No.3085/2017 dated 27.02.2020 on the file of the Judicial First Class Magistrate Court, Kalamassery, confirmed in Crl.Appeal No.309/2020 on the file of the II Additional Sessions Court-II, Ernakulam, as per the judgment dated 30.11.2021. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Notice to the 1[st] respondent, the original complaimant stands dispensed with. 3. I shall refer the parties in this Revision Petition as Crl.R.P.NoS.639 & 640 of 2022 4 `complainant' and `accused'. 4. On dishonour of cheque for Rs.25,000/- issued by the accused, dated 3.8.2016, drawn on Union Bank, Manjummel branch, the complainant launched prosecution and on cognizance of the same, the learned Magistrate numbered the case as S.T.No.2850/2017. Similarly, consequent on dishonour of cheque dated 8.8.2016 for Rs.1,32,960/- drawn on Union Bank, Manjummel branch, another prosecution was launced alleging commission of offence under Section 138 of the Negotiable Instruments Act and after taking cognizance, the learned Magistrate numbered the case as S.T.No.3085/2017. The learned Magistrate jointly tried the above cases and recorded the evidence. During trial, PW1 examined. Exts.P1 to P9 were marked on the side of the complainant. No evidence adduced on the part of the accused. 5. The learned Magistrate appraised the contentions raised by the complainant that in the month of July, 2016 the complaimant Crl.R.P.NoS.639 & 640 of 2022 5 and the accused verfied the income and expenditure of the shop run by the complainant and entrusted the same to the accused, since the complainant went to Bangalore for his studies. The specific case put up by the complainant before the trial court was that 2 cheques issued for Rs.25,000/- and Rs.1,32,960/- (Exts.P1 & P2) to the complainant by the accused, when presented for collection, the same dishonoured for want of funds. Though legal notice was issued, the complainant did not accept the notice and the same was returned with endorsement`unclaimed'. 6. Relying on the evidence of PW1 and Exts.P1 to P9, the trial court found that the complainant discharged the initial burden cast upon him in the matter of transaction led to execution of Exts.P1 and P2 cheques. The trial court also found that nothing available in evidence to rebut the presumption under Section 118 and 139 of the Negotiable Instruments Act and therefore, in both the cases the accused convicted and sentenced as under: Crl.R.P.NoS.639 & 640 of 2022 6 _"In S.T 2850/17 the accused is found guilty of offence punishable under section 138 of the N.I Act and convicted under section 255(2) of the Cr.P.C and he is sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.25,000/- (Rupees Twenty five thousand only). In default of payment of fine, the accused shall undergo simple imprisonment for one month more. If thefine amount is paid or realized the same shall be paid to the complainant as compensation under section 357(1) of the Cr.P.C. In S.T. 3085/17, the accused is found guilty of offence punishable under section 138 of the N.I Act and convicted under section 255(2) of the Cr.P.C and he is sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.1,32,960/- (Rupees One lakh thirty two thousand and nine hundred and sixty only), in default of payment of fine, the accused shall undergo simple imprisonment for one month more. If the fine amount is paid or realized the same shall be paid to the complainant as compensation under section 357(1) of the Cr.P.C."_ 7. Before the trial court, the accused raised contention that no documents produced to show the transaction between the accused and the complainant. In fact, the said contention was found against. The said contention was reiterated before the appellate court as well and by a considered judgment, the appellate court also confirmed the conviction by modifying the sentence for simple imprisonment to one month and payment of fine of Crl.R.P.NoS.639 & 640 of 2022 7 Rs.25,000/- and in default, simple imprisonment for 3 months in S.T.No.2850/2017 and in S.T 3085/2017, confirmed the conviction by modifying the sentence for simple imprisonment for 3 months to one month and to pay fine of Rs.1,32,960/- and in default, to undergo simple imprisonment for 3 months. 8. While challenging the concurrent findings, it has been contended by the learned counsel for the revision petitioner that the courts below went wrong in convicting and sentencing the accused since the details of transaction were not stated in the complaint. In fact, the said contention not seen raised before the trial court or before the appellate court. Before the appellate court, the contention was raised was to the effect that the cheques were kept in the shop room for discharging the debt of the suppliers of various items and newspapers to the shop and the said cheques somewhere misused by the complainant. However, no evidence was adduced to substantiate the said contention. During Crl.R.P.NoS.639 & 640 of 2022 8 examination of PW1, nothing extracted to disbelieve the evidence of PW1. Therefore, the courts below relied on the evidence of PW1, to prove the transaction and execution led to execution of Exts.P1 and P2. 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 modification of sentence to one for a day till rising of court and payment of compensation. Further he submitted that 8 months' time may also be granted 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 Jathavedan**_ Crl.R.P.NoS.639 & 640 of 2022 9 _**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 Court in Crl.R.P.NoS.639 & 640 of 2022 10 exercise of revisional jurisdiction shall not interfere with the order or of the Magistrate unless it is perverse or wholly unreasonable - 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 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.”_ 12. The said ratio has been followed in a latest decision of the Supreme Court reported in [(2018) 8 SCC 165], _**Kishan Rao v.**_ Crl.R.P.NoS.639 & 640 of 2022 11 _**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 non-consideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. In this connection, it is relevant to refer the law regarding presumptions. 13. In this connection, 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 considered the Crl.R.P.NoS.639 & 640 of 2022 12 ## 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 under S.139, the standard of proof for doing so is that of_ Crl.R.P.NoS.639 & 640 of 2022 13 _`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.”_ 14. 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 presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself_ Crl.R.P.NoS.639 & 640 of 2022 14 _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.”_ 15. 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_ Crl.R.P.NoS.639 & 640 of 2022 15 _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.”_ 16. 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 the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. Crl.R.P.NoS.639 & 640 of 2022 16 17. 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 this case, no evidence available to rebut the presumption as rightly found by the courts below. Therefore, the conviction requires no interference. **==> picture [36 x 56] intentionally omitted <==** 18. Coming to sentence, the same requires modification. 19. In the result: (i) These Revision Petitions are allowed in part; (ii) The conviction imposed by the trial court in both cases stands confirmed; (iii) The sentence imposed by the courts below stands modified as under: (a) In S.T.No.3085/2017, the revision petitioner/accused shall undergo simple imprisonment for a day till rising of the court for the offence under Section 138 of the N.I Act and also to pay fine of Rs.1,32,960/- (Rupees One lakh thirty two thousand nine Crl.R.P.NoS.639 & 640 of 2022 17 hundred sixty only). In default of payment of fine, the revision petitioner shall undergo default imprisonment for a period of four months. Fine shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C; (b) In S.T.No.2850/2017, the revision petitioner/accused shall undergo simple imprisonment for a day till rising of the court for the offence under Section 138 of the N.I Act and also to pay fine of Rs.25,000/- (Rupees Twenty five thousand only). In default of payment of fine, the revision petitioner shall undergo default imprisonment for a period of one month. Fine shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C; (c) Considering the request of the accused/revision petitioner, six months' time from today is granted to pay the compensation; (d) Therefore, the revision petitioner is directed to appear before the trial court on or before 29.03.2023 to undergo the modified sentence and to pay fine. In default to do so, the trial Crl.R.P.NoS.639 & 640 of 2022 18 court is directed to execute the sentence as per law without fail; (e) The execution of the sentence shall stand deferred till 28.03.2023. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_