Shihab K U v. K M Shanavas and State of Kerala represented by Public Prosecutor

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944 CRL.REV.PET NO. 656 OF 2022** **AGAINST THE JUDGMENT C.C.No. 533/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY APPEAL NO 32/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS** **COURT - II, NORTH PARAVUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SHIHAB K U AGED 45 YEARS S/O USMAN, KATTETH HOUSE, EDAVOOR P O, KALADY, ERNAKULAM DISTRICT, PIN - 683544 BY ADV P.A.MUJEEB ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** 1 K M SHANAVAS AGED 60 YEARS S/O LATE MOHAMMED, KUNNUMPURATH HOUSE, THAIKKATTUKARA P O, ALUVA, ERNAKULAM DISTRICT, PIN - 683106 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031 ## **OTHER PRESENT:** SR.PP-SRI.RENJIT GEORGE _**THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**_ Crl.R.P.No.656/2022 2 ## **A. BADHARUDEEN, J.** ================================ Crl.R.P.No.656 of 2022 ================================ Dated this the 27[th] day of September, 2022 ## _**O R D E R**_ This is a Revision Petition filed under Section 397 and 401 of the Code of Criminal Procedure challenging conviction and sentence imposed against the revision petitioner as per judgment dated 28.01.2021, who is the sole accused in C.C.No.533/2016 on the file of the Judicial First Class Magistrate, Angamaly, and modified by the Additional Sessions Judge-II, North Paravur to under go imprisonment till raising of the court and to pay a fine of Rs.12,58,000/- and in default, to undergo Crl.R.P.No.656/2022 3 simple imprisonment for a period of 3 months. On realisation, out of the fine amount, Rs.12,57,000/shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. as per judgment in Crl.Appeal No.32/2021 dated 20.08.2022. The respondents in this revision petition are the complainant and the State of Kerala represented by Public Prosecutor. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. 4. Shown off unnecessary narrations, the case put up by the complainant/the 1st respondent herein Crl.R.P.No.656/2022 4 before the court below is as under: It is alleged by the complainant that the accused approached the complainant for a loan of Rs.10,00,000/-. At that time the complainant had availed an overdraft loan and he agreed to pay a sum of Rs.9,70,000/- to the accused with bank interest @ 13%. The accused gave his consent and the complainant transferred the sum of Rs.9,70,000/- to the bank account of the accused. On the same day, towards the repayment of the loan with interest, the accused issued a cheque bearing No.018374 dated 02.03.2015 for Rs.12,57,000/- drawn on his account in Axis Bank Ltd., Perumbavoor branch to the complainant. But when the cheque was presented for collection, the same was dishonoured for want of Crl.R.P.No.656/2022 5 sufficient funds. Though legal notice intimating the dishonour and demanding the amount covered by the cheque was issued and accepted by the accused, he did not pay the amount. Accordingly, the complainant lodged the prosecution under Section 138 of the Negotiable Instruments Act. 5. The trial court secured the presence of the accused for trial and evidence was recorded. The complainant got examined as PW1 and Exts.P1 to P6 were marked. 6. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 7. On appreciation of the evidence, the trial Crl.R.P.No.656/2022 6 court convicted and sentenced the accused to undergo simple imprisonment for a period of three months and to pay fine of Rs.12,58,000/-, out of which Rs.12,57,000/- shall be paid to the complainant as compensation under Section 357(1) (b) of Cr.P.C and in default of payment of compensation, to undergo further simple imprisonment for a period of three months. On appeal, the learned Sessions Judge also confirmed the said conviction and sentence by modifying the substantive sentence of imprisonment till rising of the court on re-appreciation of the evidence. 8. While assailing concurrent findings of the trial court as well as the appelatte court, it is submitted by the learned counsel for the revision Crl.R.P.No.656/2022 7 petitioner/accused that the complainant failed to prove the transaction and execution of Ext.P1 cheque by cogent evidence. Further he submitted that the defacto complainant had many transaction with the accused and accordingly he had issued 3 cheques as security and the said cheques were misused. In this matter no evidence available to establish the said contention. It is interesting to note that appellate judgment, learned Sessions Judge extracted the answers given by the accused during 313 questioning by admitting the transaction, issue of cheque for the same with plea of discharge. It is pertinent to note that the Courts below given emphasis to the evidence of PW1 to prove the transaction led to execution of the cheque. Apart from that the Crl.R.P.No.656/2022 8 appellant admitted the transaction and issue of cheque. Though, plea of discharge was raised, the said contention not proved at all. Therefore none of the contentions raised in the revision is found sustainable. 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 prayed for grant of 8 months' time is 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 reappreciate the evidence to have a contra finding. In the decision reported in [(1999) 2 SCC 452 : 1999 Crl.R.P.No.656/2022 9 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,_ Crl.R.P.No.656/2022 10 _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 exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly - unreasonable or 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 non-consideration of any relevant_ Crl.R.P.No.656/2022 11 _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. 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 Crl.R.P.No.656/2022 12 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. 13. 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 supported by Crl.R.P.No.656/2022 13 Exts.P1 to P7 to prove that the accused herein issued Ext.P1 cheque for consideration. Thereby the complainant proved his initial burden entitling him to get the benefit of presumptions under Sections 118 and 139 of the N.I Act. 14. 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 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_ Crl.R.P.No.656/2022 14 _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_ Crl.R.P.No.656/2022 15 _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.”_ 15. 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_ Crl.R.P.No.656/2022 16 _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.”_ 16. 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: Crl.R.P.No.656/2022 17 _“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 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_ Crl.R.P.No.656/2022 18 ## _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.”_ 17. 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.No.656/2022 19 18. 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. 19. In view of the discussion, there is no reason to interfere with the concurrent verdicts entered into by the trial court as well as the appellate court. Similarly the appellate court rightly modified the substantive sentence to the minimum sentence of imprisonment till rising of the court and to pay fine of Rs.13,60,684/- as compensation under Section 357(1)(b) Cr.P.C and in default of payment of the fine, to undergo simple imprisonment for three months. Therefore, the sentence also does not require any interference at the hands of this Court. Crl.R.P.No.656/2022 20 Accordingly, the Revision Petition is dismissed, while granting four months' time to the revision petitioner to pay the fine and to undergo the sentence imposed by the appellate court. Therefore, the execution of sentence shall stand deferred till 28.01.2023. The revision petitioner shall appear before the trial court on 29.01.2023 to undergo the modified sentence and to pay the fine. Sd/- ## **(A. BADHARUDEEN, JUDGE)** TR Crl.R.P.No.656/2022 21 ## **APPENDIX OF CRL.REV.PET 656/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE JUDGMENT IN C C NO.533/2016 DATED 28/01/2021 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY Annexure A2 TRUE COPY OF THE JUDGMENT IN CRL APPEAL NO.32/2021 OF THE IIND ADDITIONAL DISTRICT AND SESSIONS COURT AT NORTH PARAVUR