Shali Jiju v. Biju Joseph & State of Kerala; Jiju v. Jesto Pappachan & State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 CRL.REV.PET NO. 152 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 1129/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY(TEMPORARY) DATED 12/12/2019 CRA 14/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT, NORTH PARAVUR DATED 02/12/2021 ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SHALI JIJU AGED 44 YEARS, W/O.JIJU, KEEZHUTHARA HOUSE, MANJAPPRA PO, ANGAMALY, ERNAKULAM., PIN - 680308 BY ADVS. BIMALA BABY BLAISE JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1BIJU JOSEPH AGED 50 YEARS THEKKEKADATH HOUSE, KARUKUTTY, ERNAKULAM DISTRICT, PIN - 680308 ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031, PIN - 682031 R2 BY PP SRI.ARAVIND V. MATHEW ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.03.2022, ALONG WITH Crl.Rev.Pet.156/2022, THE COURT ON 23.03.2022 DELIVERED THE FOLLOWING: ``` Crl.R.P. Nos.152 & 156 of 2022 -:2:- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 CRL.REV.PET NO. 156 OF 2022 AGAINST THE ORDER/JUDGMENT IN CC 1471/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY(TEMPORARY) DATED 12/12/2019 CRA 13/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT, NORTH PARAVUR DATED 02/12/2021 ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` JIJU AGED 47 YEARS, S/O.PAPPACHAN KEEZHUTHARA HOUSE, MANJAPPRA PO, ANGAMALY, ERNAKULAM., PIN - 680308 BY ADVS.BIMALA BABY BLAISE JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1JESTO P PAPPCAHN S/O.PAPPACHAN, PUTHUSSERY HOUSE, MOOKKANNOOR PO, ALUVA, PIN - 683101 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031, PIN - 682031 R2 BY PP SRI.ARAVIND V. MATHEW ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR`** ``` ADMISSIONON 18.03.2022,ALONGWITH Crl.Rev.Pet.152/2022, THE COURT ON 23.03.2022 DELIVERED THE FOLLOWING: ``` -:3:- ## Crl.R.P. Nos.152 & 156 of 2022 ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos. 152 & 156 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of March, 2022 ## COMMON ORDER The revisions on hand are filed by the respondent respectively in prosecutions launched under Section 142 of the Negotiable Instruments Act, 1881 (for short N.I. Act’) and taken on file by Judicial First Class Magistrate Court, Angamaly respectively as C.C. Nos.1129 and 1471 of 2015 who faced trial and found guilty for an offence punishable under Section 138 N.I. Act and stands convicted and sentenced to under simple imprisonment for a period of six months and to pay a fine respectively for Rs.45,02,000/- and 37,02,000/- and to undergo simple imprisonment for a period of six months in default of payment of fine. The fine amount on deposit was also directed to be paid as compensation to the complainant under Section 357(1)(b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). Crl.R.P. Nos.152 & 156 of 2022 -:4:- 2. When the above judgments were assailed respectively in Crl.Appeal Nos.14/2020 and 13/2020, the Additional Court of Sessions, North Paravur by its separate judgments dated 02.12.2021 dismissed the appeals and confirmed the conviction and sentence. Aggrieved thereby the accused, who are husband and wife, are now in revisions. 3. The learned counsel for the revision petitioners has contended that the complainant failed thoroughly to prove execution of the cheques beyond reasonable doubt. According to her, the courts below failed to appreciate the evidence adduced by the defence in the case, properly. According to her, the court below ought not to have reached a finding that the accused owed a legally enforceable debt and issued the cheques for consideration. It is contended that the complainant failed to launch the prosecution and the proof affidavit filed by him do not incorporate a description on the transaction, the actual receipt of any amount by the accused and the time of execution of the cheques and that aspect, though fatal to the prosecution, was not considered by the trial court as well as appellate court. According to her, documentary evidence is not forthcoming to Crl.R.P. Nos.152 & 156 of 2022 -:5:- prove initial advancement of Rs.30,00,000/- as alleged by the complainant. According to her, no evidence is also adduced by the complainant to establish that he had the required source to advance the money to the accused. 4. The partnership business alleged is also not proved by the complainant. PW1 also stated as not remembering the date of compromise and issuance of cheques as alleged. The role allegedly played by PW2 is only that of a mediator, but he denied to have witnessed the issuance of the cheques. It was further contended that the entries in the cheques were not filled in the handwritings of the accused. According to her, the court below has gone wrong in taking a view that signing of the cheques itself is execution of it. Lastly and finally it was contended that the ingredients to constitute the offence under Section 138 N.I. Act are not established by the complainant for treating the prosecution as a successful one. The learned counsel canvassed for admitting the revision on the basis of the reasons stated above. 5. This Court has gone into the judgments and contentions raised. The issuance of a signed blank cheque is admitted by the ## Crl.R.P. Nos.152 & 156 of 2022 -:6:- accused. According to him, the entries in Ext.P1 cheque were not filled by him. Accordingly, the accused attempted to draw a distinction between signing a cheque and executing it. It is not necessary that the complaint must contain all particulars of the alleged transaction in which the disputed cheque was issued. 6. Going by the pleadings of the complainant referred to in the judgments in question, it is found that materials indicative and communicative of the alleged transaction are incorporated in the complaint. Moreover, the accused failed to dispute the source of the complainant to advance the money. The dispute on source of income is found raised for the first time in the revisions on hand. 7. A reply notice was sent by the accused in the case on hand. The contention taken in the reply notice was that while himself, his wife and the complainant were working abroad, Rs.5,00,000/- was borrowed by him from the complainant and as demanded by the latter two signed blank cheques, one of him and the other of his wife were given as security to ensure repayment. Annoyed by the act of the husband's initiative to sell Crl.R.P. Nos.152 & 156 of 2022 -:7:- the landed property to a third party, the prosecution was falsely foisted filling up its entries with exorbitant amounts. 8. Whereas the case of the respective complainant was that while working together abroad, there was a proposal for a project to construct cottages at Athirappilly in the land belonging to the husband of the accused and the accused made a demand to them to join. Accused took Rs.35,00,000/- from him for the purpose. Thereafter the project was dropped and the demand for repayment of the money was also not fructified. In the mediation talks a post dated cheque for Rs.45,00,000/- inclusive of interest was issued on 13.08.2013. 9. Cheques were bounced on presentation for the reason 'account closed' and the prosecution in question was launched on failure of the accused to pay the sum when demanded through lawyer notice. 10. Complainant gave evidence as PW1 describing his pleadings in the complaint in full. The factum that the issues were mediated and settled was established from the oral version of PW2. True that PW2 has no idea about issuance of the post dated cheques following settling of the issues. But, the issuance Crl.R.P. Nos.152 & 156 of 2022 -:8:- of a signed cheque is admitted by the accused. According to him, issuance of a signed cheque was as security for a transaction of borrowal of Rs.5,00,000/- from the complainant. 11. When complainant's case of issuance of cheque towards repayment of a monetary liability outstanding for payment to him is proved by his own uncontroverted oral evidence and also that tendered by PW2, unquestionably the presumption under Section 118(a) and 139 N.I. Act would be attracted in favour of the complainant. 12. The defence of the accused was that signed cheque was issued as security in a transaction of borrowal of Rs,5,00,000/from the complainant. It is pertinent to note that, no evidence was adduced by the accused to discharge the onus of rebutting the presumption by proving on the contrary. During examination under Section 313 Cr.P.C his specific stand was that of innocence. He failed to say anything in tune with the defence he had taken in the complaint. 13. The arguments advanced were also found raised both before the trial court as well as the Apex Court. The courts below considered the arguments in the proper perspective and Crl.R.P. Nos.152 & 156 of 2022 -:9:- arrived at a finding of guilt of the accused concurrently and convicted and sentenced him. ## 14. The Apex Court in Bir Singh v. Mukesh Kumar [2019 (1) KHC 774] has held as follows : “38. 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. Xx xx xx xx 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 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.” A jurisdictional error having not been raised against the impugned judgments, revisions are not liable to be admitted and therefore are dismissed in limine. Sd/MARY JOSEPH, JUDGE. ttb