Shahul Hameed v. Sivalokanathan and State

**CRL.REV.PET NO. 607 OF 2011** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 CRL.REV.PET NO. 607 OF 2011 AGAINST THE JUDGMENT CRA IN 676/2009 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD ST.NO.1197/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **-I,PALAKKAD** ## **PETITIONER/APPELLANT/ACCUSED:** SHAHUL HAMEED,S/O.CHANTHU MUHAMMED, THASARAK, KINASSERY, PALAKKAD DISTRICT. BY ADV SRI.P.K.MOHANAN(PALAKKAD) ## **RESPONDENTS/APPELLANT/COMPLAINANT & STATE:** 1 SIVALOKANATHAN,S/O.VELAPPAN, MELE VEEDU, KANNANUR, ALATHUR, PALAKKAD DISTRIACT, PIN-678 541. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM – 682 031. BY ADV SRI.NAVEEN THOMAS ADV.SMT.S.SEETHA, SR.P.P THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.REV.PET NO. 607 OF 2011** **2** ## **ORDER** The revision petitioner calls in question the legality and correctness of the judgments in Crl.A No.676/2009 passed by the Court of Session, Palakkad Division (Appellate Court), confirming the judgment in ST No.1197/2004 passed by the Court of the Judicial First Class Magistrate–I, Palakkad (Trial Court), convicting and sentencing the revision petitioner for an offence under Section 138 of the Negotiable Instruments Act ( in short, ‘N.I.Act’). The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. ## The facts in brief: 2. The first respondent had filed the complaint before the Trial Court, alleging that the revision petitioner had borrowed an amount of Rs.1,50,000/- in December, 2003 for his personal purpose. In discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the first respondent. The cheque, **CRL.REV.PET NO. 607 OF 2011** **3** on presentation to the bank for collection, got dishonoured as per Ext.P2 memo due to ‘insufficiency of funds’ in the bank account of the revision petitioner. Although the first respondent had issued Ext.P4 statutory lawyer notice, the revision petitioner failed to pay the demanded amount. Hence, he committed the offence under Sec.138 of the N.I Act. ## Trial 3. The revision petitioner pleaded not guilty to the substance of the accusation made against him. In the trial, the first respondent got examined himself as PW1 and marked Exts.P1 to P6 in evidence. The revision petitioner denied the incriminating circumstances put against him in the questioning under Section 313 of the Code of Criminal Procedure (in short, ‘Cr.P.C.’). The revision petitioner did not let in any defence evidence. ## Trial Court Judgment 4. The Trial Court, after analysing the materials on record, convicted the revision petitioner for the offence under Section 138 of the N.I.Act and sentenced him to **CRL.REV.PET NO. 607 OF 2011** **4** undergo simple imprisonment for a period of six months and to pay a compensation of Rs.1,50,000/- to the first respondent under Section 357 (3) of the Cr.P.C., and in default to undergo simple imprisonment for a further period of two months. 5. Aggrieved by the said judgment, the revision petitioner preferred Crl.A. No.676/2009 before the Appellate Court. ## Appellate Court Judgment 6. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment confirmed the conviction, but modified the sentence by directing the revision petitioner to pay a fine of Rs.1,70,000/- and in default to undergo simple imprisonment for a period of four months, and if the fine amount was realised, the same to be paid to the first respondent as compensation under Section 357(1) Cr.P.C. 7. It is assailing the concurrent findings of the courts below, the revision petition is filed. **CRL.REV.PET NO. 607 OF 2011** **5** 8. Heard; Sri. P.K.Mohanan, the learned counsel appearing for the revision petitioner; Sri.Naveen Thomas, the learned counsel appearing for the first respondent and Smt.S.Seetha, the learned Senior Public Prosecutor appearing for the second respondent. 9. Is there any illegality, impropriety or irregularity in the judgments of the courts below ? 10. The revisional jurisdiction of this Court under Secs.397 to 401 of the Cr.P.C is well settled in a catena of precedents holding that the power is to be sparingly exercised and in cases of exceptional rarity. The power is more in the nature of a supervisory jurisdiction, to correct patent errors, manifest illegality and when there is misreading of records. 11. In **Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and purport of the powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: **CRL.REV.PET NO. 607 OF 2011** **6** “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. 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 CrPC 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 glaringly 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.” ## Facts of the case 12. The first respondent's case was that, the revision petitioner borrowed an amount of Rs.1,50,000/from him in December, 2003 for his personal purpose **CRL.REV.PET NO. 607 OF 2011** **7** and in discharge of the said liability, he had issued Ext.P1 cheque which got dishonoured due to insufficiency of funds in the bank account of the revision petitioner. Despite the receipt of Ext.P4 statutory lawyer notice, the revision petitioner failed to pay the demanded amount. 13. The revision petitioner did not send any reply notice or let in any defence evidence. In the crossexamination of the first respondent, who was examined as PW1, it was alleged that the cheque does not belong to the first respondent. 14. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Secs.118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: “118. Presumptions as to negotiable instruments – Until the contrary is proved, the following presumptions shall be made;- (a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; 139. Presumption in favour **CRL.REV.PET NO. 607 OF 2011** **8** of holder. —It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability”. 15. A three-Judge Bench of the Hon’ble Supreme Court in **Rangappa vs. Sri.Mohan** [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of ‘reverse onus’, by holding thus: “ 18. In light of these extracts, we are in agreement with the respondent - claimant that 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 (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 specifies a strong criminal **CRL.REV.PET NO. 607 OF 2011** **9** 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 '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. As clarified in the citations, the 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. ## 16. Recently, a three-Judge Bench of the Hon’ble Supreme Court in **Kalamani Tex and Anr vs. P.** **CRL.REV.PET NO. 607 OF 2011** **10** **Balasubramanian** [2021 (2) KHC 517] has reiterated the legal position and the doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declares the law on the point in the following terms: “14. 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 Section 118 and Section 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, obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243).” 17. Indisputably, the revision petitioner has admitted the execution of Ext.P1 cheque. He has not sent any reply notice to Ext.P4 statutory lawyer notice or let in defence evidence. 18. In **Rangappa vs. Sri.Mohan(** supra), the Hon'ble Supreme Court has held that once a cheque is dishonoured, reverse onus of proof is cast on the accused under Section 139 of the N.I.Act. If the **CRL.REV.PET NO. 607 OF 2011** **11** accused fails to reply to the statutory lawyer notice issued by the complainant under Section 138 of the N.I.Act, then an inference has to be drawn in favour of the complainant . 19. In **Kalamani Tex** (supra), the Hon'ble Supreme Court has held that even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment, the statutory presumption under Section 139 of the N.I. Act cannot be obliterated unless a probable defence is set up. 20. In the case at hand, the revision petitioner has failed to rebut the reverse onus of proof under Section 139 of the N.I. Act. 21. The courts below, on an appreciation of the materials on record have concluded that Ext.P1 cheque was issued by the revision petitioner in discharge of a legally enforceable debt. I do not find any error, illegality or impropriety in the concurrent findings of the courts below to take a contrary view. Thus, I confirm the concurrent convictions and sentences **CRL.REV.PET NO. 607 OF 2011** **12** passed by the courts below. 22. At the said point of time, the learned Counsel appearing for the revision petitioner prayed that the revision petitioner may be granted atleast two months' time to pay the compensation amount. He submitted that the revision petitioner has deposited an amount of Rs.75,000/- before the Trial Court pursuant to the interim order dated 24.3.2011 passed by this Court. As the revision petition is of the year 2011 and the fact that this Court has suspended the execution of sentence and the revision petitioner has deposited Rs.75,000/-, I find the present submission to be reasonable and justifiable. Hence, I am inclined to accept the said submission. In the result; (i) The revision petition is dismissed; (ii) The conviction and sentence passed by the courts below are confirmed; (iii) The revision petitioner is directed to appear before the Trial Court on or before 6.12.2023, to pay **CRL.REV.PET NO. 607 OF 2011** **13** the fine amount, and failing which to undergo the default sentence; (iv) Needless to mention, if the revision petitioner has already deposited any amount before the court below, only the balance amount need be deposited; (v) In case of failure of the revision petitioner to appear before the Trial Court and pay the fine amount, the Trial Court shall execute the sentence to recover the fine amount/implement the default sentence; (vi) The execution of the sentence shall stand deferred till 6.12 2023; (vii) If the fine amount is remitted, the same shall be released to the first respondent; (viii) The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance. **Sd/-C.S.DIAS** ma/06.10.2023 **JUDGE**