Shibu Raj M. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 CRL.REV.PET NO. 670 OF 2022 AGAINST THE JUDGMENT DATED 24.06.2022 IN CRA 165/2018 OF DISTRICT COURT & SESSIONS COURT, KOTTAYAM IN THE JUDGMENT DATED 29.09.2018 IN ST 194/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS V, KOTTAYAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SHIBU RAJ M., AGED 52 YEARS S/O T.K MANI, SHOBITHA ELECTRONICS (MANUFACTURES) PVT.LTD KARTHIKA, T.C.2/3427, CHALAKUZHY ROAD, PATTAM P.O, THIRUVANANTHAPURAM – 695004. BY ADV JIBU P THOMAS ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA – 682031. 2 BINU THOMAS AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONER PROPRIETOR M/S EMFORE TECHNOLOGIES, KUDAMALLOOR P.O, KOTTAYAM – 686017. 3 SHOBITHA ELECTRONICS(MANUFACTURES) PVT.LTD KARTHIKA, T.C.2/3427, CHALAKUZHY ROAD, PATTAM P.O, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR MANU OMANAKUTTAN PILLAI, S/O OMANAKUTTAN PILLAI, KPV/314, NANDHANAM, MOKKOLA P.O, THIRUVANANTHAPURAM – 695541. BY SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON 12.10.2022 DELIVERED THE FOLLOWING: Crl.R.P.No.670/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.R.P No.670 of 2022_ ================================ _Dated this the 12[th] day of October, 2022_ ## _**O R D E R**_ This is a Revision Petition filed under Section 397 and 401 of Cr.P.C by the revision petitioner, who is the accused in S.T.No.194/2016 on the file of the Judicial First Class MagistrateV, Kottayam, challenging conviction and sentence imposed against him by the said court as per judgment dated 29.09.2018 which was confirmed by judgment dated 24.06.2022 in Crl.Appeal No.165/2018 by the Sessions Court, Kottayam. 1[st] respondent herein is State of Kerala and the 2[nd] and 3[rd] respondents are the complainant and the 1[st] accused respectively. 2. I would like to refer the parties in this Revision Petition Crl.R.P.No.670/2022 3 as the `complainant' and `accused' for easy discussion. 3. Heard the learned counsel for the revision petitioner on admission and the learned Public Prosecutor. Notice to the 2[nd] and 3[rd] respondents, the original complainant and the 2[nd] accused, stands dispensed with. 4. Summary of the case advanced by the complainant before the trial court is as follows: A proprietory concern M/s.Emfore Technologies represented by its Managing Director is the complainant in this case and the complainant launched the prosecution alleging commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the `N.I Act' for short) when cheque dated 16.01.2016 for Rs.6,24,000/- issued by the accused towards the price of articles purchased by the accused got dishonoured for want of funds. 5. The court below took cognizance of the matter and Crl.R.P.No.670/2022 4 secured presence of the accused for trial. During trial, PW1 and PW2 examined and Exts.P1 to P9 were marked. When the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, DW1 examined and Exts.D1 and D1(a) were marked. 6. After appraising the evidence, the trial court convicted the accused under Section 255(2) of Cr.P.C for the offence punishable under Section 138 r/w Section 141 of the Negotiable Instruments Act and sentenced to pay fine of Rs.6,24,000/-. In default of payment of the fine, the accused was directed to undergo simple imprisonment for a period of 3 months. 7. Case against the 1[st] accused the firm was split up and the 2[nd] accused, the managing partner, was tried. 8. Aggrieved by the conviction and sentence imposed by the trial court, the accused filed Crl.Appeal No.165/2018 before the Sessions Court, Kottayam and as per the judgment dated Crl.R.P.No.670/2022 5 24.06.2022, the learned Sessions Judge dismissed the appeal after confirming the conviction and sentence. 9. The learned counsel for the accused submitted that the 1[st] accused in this case is a proprietory concern and therefore without the junction of the accused, the prosecution case is erroneous. 10. In this matter, the trial court appraised the evidence and found that the accused herein committed offence under Section 138 of the N.I Act. Though the appeal was filed against the conviction and sentence, the learned Sessions Judge also confirmed the same. It is true that there are 2 accused in the case and the 1[st] accused is the company and the 2[nd] accused is the Managing Director, who is the revision petitioner herein, who issued Ext.P2 cheque in favour of the complainant. Since the prosecution led to execution of Ext.P2 cheque was proved, no illegality or irregularty could be found in the matter of appreciation of evidence. Crl.R.P.No.670/2022 6 11. 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 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_ Crl.R.P.No.670/2022 7 _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. ...”_ 12. 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 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_ Crl.R.P.No.670/2022 8 _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.”_ 13. 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 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. Crl.R.P.No.670/2022 9 14. In this case, as I have already pointed out, the trial court as well as the appellate court rightly appreciated the evidence given by PW1 and PW2 supported by Exts.P1 to P9 to prove that the accused herein issued Ext.P2 cheque for purchase of some articles from the complainant as agreed between them. 15. In this matter, the courts below given benefit of presumptions under Sections 118 and 139 of the N.I Act in favour of the complainant on the finding that the complainant discharged his initial burden in the matter of execution of Ext.P2 cheque, which was issued towards consideration, for the articles purchased by the accused. 16. Regarding presumptions, the law is well settled. 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 presumption available to a complainant in a prosecution under Section 138 of Crl.R.P.No.670/2022 10 ## 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 `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a_ Crl.R.P.No.670/2022 11 _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.”_ 17. 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 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.”_ Crl.R.P.No.670/2022 12 18. 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 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_ Crl.R.P.No.670/2022 13 _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.”_ 19. Thus the law is settled that in this case when the complainant discharged his initial burden, in order to negative the benefit of presumptions available in favour of the complainant, the accused shall adduce evidence to rebut the presumption. In this case, the accused raised a contention that the date of Ext.P2 cheque was put by the staff of the company and the same lacks consideration. However, the evidence would not justify the said contention. In view of the matter, it has to be held that the accused miserably failed to rebut the presumptions. Therefore, there is no reason to interfere with the conviction concurrently found by the Crl.R.P.No.670/2022 14 courts below. 20. Regarding the sentence, it is relevant to note that the courts below even not imposed substantive imprisonment and only payment of fine was ordered. In view of the matter, sentence also requires no interference. 21. Lastly it is submitted by the learned counsel for the revision petitioner/accused that 10 months' time may be granted for paying the cheque amount. In this context, it is to be noted that the prosecution was launched consequent on the dishonour of the cheque dated 16.01.2016. Thus more than 6 years have already elapsed. Therefore, much leniency in the matter of grant of time cannot also be considered. However, in the interest of justice, 2 months' time more from today is granted to pay the fine amount. 22. In the result, the Revision Petition is dismissed. While confirming the concurrent findings of conviction and sentence entered into by the trial court and the Sessions Court, two months' Crl.R.P.No.670/2022 15 more time from today is granted to the revision petitioner to pay the fine or to undergo the default sentence imposed by the trial court. Therefore, the execution of sentence shall stand deferred till 12.12.2022. The revision petitioner shall appear before the trial court on 13.12.2022 to pay the fine or to undergo the default sentence. If the revision petitioner/accused fails to appear before the trial court, the trial court is directed to execute the sentence without fail. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_