Sini Jose v. M/s Sakthan Kuries & Loans [P] Ltd. and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 6[TH] DAY OF JANUARY 2023 / 16TH POUSHA, 1944 ``` ``` CRL.REV.PET NO. 8 OF 2023 ``` ``` AGAINST THE JUDGMENT IN CRL.A.NO.142/2021 OF ADDITIONAL DISTRICT ``` ``` COURT NO.1, THRISSUR ``` ## **`C.C.NO.1841/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SINI JOSE AGED 44 YEARS W/O.LATE JOSE, NEELANKAVIL HOUSE, P.O.PULLAZHI, OLARIKKARA, THRISSUR, PIN - 680012 BY ADV. RENJU SEBASTIAN ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT&STATE:`** ``` 1M/S.SAKTHAN KURIES & LOANS [P] LTD. PALLIKULAM ROAD, THRISSUR, REPRESENTED BY THE CHAIRMAN SONY JOSE, S/O.KOZHIPARAMBAN JOSEPH, CHIYYARAM VILLAGE, KURIACHIRA DESOM, THRISSUR DISTRICT., PIN - 680006 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 R2 BY SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 8 OF 2023 2 ``` ## ORDER This revision has been filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C’ hereinafter), challenging judgment in C.C.No.1841/2014, dated 6.9.2021 on the files of the Judicial First Class Magistrate Court - I, Thrissur and also the judgment in Crl.Appeal No.142/2021 on the files of the I Additional Sessions Court, Thrissur. 2. The revision petitioner is the accused in the above case. 3. The respondents herein are the original complainant as well as the State of Kerala. 4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor, on admission. Notice to the first respondent stands dispensed with. 5. I shall refer the parties as ‘complainant’ and ‘accused’, for convenience. 6. Bereft of unnecessary details, the case put up by the complainant before the trial court is as under: The complainant, a company, by name M/s.Shakthan Kuries & Loans ``` CRL.REV.PET NO. 8 OF 2023 3 ``` (P) Ltd, Pallikulam Road, Thrissur, filed complaint under Section 142 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter), when cheque for Rs.1,82,984/- (Rupees One Lakh Eighty Two Thousand Nine Hundred and Eighty Four only), dated 11.12.2013, issued by the accused towards the discharge of the loan liability availed by the husband of the accused, wherein accused was the guarantor, got dishonoured. 7. Originally, the case was filed before the Chief Judicial Magistrate Court, Thrissur as S.T.No.1331/2014 and then made over to the Judicial First Class Magistrate Court-I, Thrissur. 8. The court below secured the presence of the accused for trial and during trial, PW1 was examined and Exts.P1 to P10 were marked on the side of the complainant. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to her, to adduce defence evidence. Accordingly, DW1 was examined and Ext.D1 was marked on the side of the defence. 9. The trial court appreciated the evidence and found that the accused committed offence punishable under Section 138 of the NI Act and she was sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.1,82,984/- (Rupees One Lakh Eighty Two Thousand Nine Hundred ``` CRL.REV.PET NO. 8 OF 2023 4 ``` and Eighty Four only) and the fine was ordered to be given as compensation to the complainant. Default imprisonment for a period of 3 months also was imposed. The accused challenged the order of trial court before the I Additional Sessions Court, Thrissur in Crl.Appeal No.142/2021. As per judgment, dated 14.7.2022, the learned Sessions Judge also confirmed the finding of the trial court and dismissed the appeal. 10. While impeaching the veracity of the concurrent findings entered into by the trial court as well as the appellate court, the learned counsel for the accused submitted that the accused is the guarantor of loan liability and the principal debtor, who was her husband and he is now no more. She also submitted that the specific contention raised by the accused before the trial court as well as the appellate court was that, Ext.P1 cheque was issued as a security and when the accused raised such a contention, the complainant was bound to produce the details of account relating to the full transaction, to prove the amount covered by the cheque was due to the complainant. It is, in this connection, a decision of this Court reported in Susamma Raju v. K.M.Wilson and Another [2018 (1) KHC 846] has been relied. She also argued that the details of the loan transaction not produced before the trial court and therefore, the conviction and sentence are liable to be set aside. ``` CRL.REV.PET NO. 8 OF 2023 5 ``` 11. Going by the grounds raised in the revision petition, in fact, those are matters to be decided on appreciation of evidence and the said power is not available to this Court while exercising revision. 12. 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 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 ``` CRL.REV.PET NO. 8 OF 2023 6 ``` 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. …” 13. 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 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 ``` CRL.REV.PET NO. 8 OF 2023 7 ``` ## revisional jurisdiction.” 14. 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 nonconsideration of any relevant materials or fundamental violation of the principle of law, then only the power of revision would be made available. 15. In this matter, the courts below given emphasis to the evidence of PW1 and Exts.P1 to P10 to hold that the complainant discharged its initial burden in the matter of transaction which led to execution of Ext.P1 cheque and thereby, the benefit of twin presumptions under Sections 118 and 139 of the NI Act was given to the complainant. Accordingly, the accused was convicted and sentenced. ``` CRL.REV.PET NO. 8 OF 2023 8 ``` 16. Law is settled on the point that as the complainant discharges its initial burden in the matter of transaction led to execution of cheque, the complainant would get the benefit of twin presumptions under Sections 118 and 139 of the N.I Act and therefore the courts below rightly given the benefit of presumptions in favour of the complainant. 17. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], _**Rangappa v. Sri 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 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 ## `CRL.REV.PET NO. 8 OF 2023 9` 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. 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.” 18. 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 ## `CRL.REV.PET NO. 8 OF 2023 10` 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.” 19. 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 ## `CRL.REV.PET NO. 8 OF 2023 11` 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.” 20. Coming back to the contention raised by the learned counsel for the accused confined insofar as issuance of Ext.P1 cheque as security is concerned, the trial court observed that the accused not disputed the alleged chitty transaction and the accused admitted the transaction. But, the contention raised was that, Ext.P1 cheque was issued as a security, while receiving the chitty prize money. This contention could not succeed in view of the ratio in _**Kalamani Tex** (supra)._ Going by the ratio in Susamma Raju ’s case (supra) also, what has been stated is, when the accused raised a contention to the effect that the cheque was issued as a blank one, the ``` CRL.REV.PET NO. 8 OF 2023 12 ``` complainant was bound to produce the details of account relating to the full transaction, to prove the amount covered by the cheque. In the present case, Ext.P7 is the personal ledger, showing the details of loan transaction and for the balance amount as per Ext.P7, Ext.P1 was issued. Therefore, the complainant successfully established the loan transaction and balance in tune with the cheque amount. Therefore, this contention cannot succeed. 21. It is interesting in note that the accused has no case that the liability was discharged. Insofar as proof of offence punishable under Section 138 of the NI Act is concerned, the law is settled. In view of the legal position, even a cheque is issued as security would carry presumptions and therefore, the contention raised by the accused cannot be sustained in the eye of law. 22. Considering the matter within the limited power of revision, nothing substantiated to unsettle the concurrent verdicts in any manner. Therefore, this revision fails. However, considering the request of the learned counsel for the revision petitioner, I am inclined to grant one month time from today, to pay the fine amount and therefore, imposing of sentence shall stand deferred till 5.2.2023 and the accused is directed to appear before the trial court on 6.2.2023, either to pay the fine amount or to undergo the default sentence. If the accused fails to appear as directed, the trial court is directed to execute the ``` CRL.REV.PET NO. 8 OF 2023 13 ``` sentence, as per law. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- A. BADHARUDEEN JUDGE Bb //TRUE COPY// PA TO JUDGE