Sivakumar P v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** **Crl.Rev.Pet.No.147 OF 2020** **AGAINST THE JUDGMENT OF CONVICTION & SENTENCE IN S.T.NO.29/2017 DATED 19.09.2018 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-II, ALATHUR CONFIRMED IN CRIMINAL APPEAL NO.207/2018 DATED 23.11.2019 OF THE ADDITIONAL SESSIONS COURT-V, PALAKKAD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **SIVAKUMAR P AGED 52 YEARS S/O.PARAMESWARAN, T.C.20/960, KV HOUSE, KARAMANA.P.O., THIRUVANANTHAPURAM-695002** **BY ADV. SRI.M.R.SARIN** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 VIJAYAKUMAR.V.B S/O.BALAN, POOVATHINGAL HOUSE, PALLIKAD, VADAKKENCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT678541** ## **SRI.C.K.PRASAD PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON 03.02.2020 PASSED THE FOLLOWING:** Crl.R.P.No.147/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.147 of 2020 ----------------------------------------------Dated this the 3[rd] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T.No.29/2017 on the file of the Court of the Judicial First Class Magistrate-II, Alathur. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced the petitioner to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.A.No.207/2018 before the Court of Session, Palakkad challenging the order of conviction and sentence passed against him by the trial court. The Crl.R.P.No.147/2020 3 appellate court confirmed the conviction of the petitioner for the offence under Section 138 of the Act. The appellate court set aside the sentence of simple imprisonment for a period of one year imposed on the petitioner by the trial court and imposed a sentence of imprisonment till the rising of the court and maintained the sentence of fine imposed on him by the trial court. 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant had subscribed to a chitty conducted by the company by name 'New Millennium Kuries'. He bid the chitty for an amount of Rs.1,70,000/-. The accused stood as a surety for the complainant in the chitty transaction. The accused obtained the chitty amount from the complainant promising that he would repay the future instalments of the chitty. The complainant and the accused entered into an agreement between them regarding Crl.R.P.No.147/2020 4 the transaction. At that time, the accused handed over a cheque for Rs.2,00,000/- to the complainant. Subsequently, the accused made default in repayment of the chitty instalments and an amount of Rs.2,30,000/- became due from the complainant to the chitty company. Then the complainant demanded the accused for repayment of the amount. The accused permitted the complainant to present the cheque for collection. The complainant presented the cheque in the bank. It was returned with the endorsement “account closed”. The complainant sent a notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 was examined on the side of the accused and Exts.D1 and D2 documents were marked on his side. 8. When examined as PW1, the complainant gave evidence with regard to the details of the transaction between him and the accused. He gave evidence that he auctioned the chitty and received an amount of Rs.1,70,000/- and the accused Crl.R.P.No.147/2020 5 was the surety in the chitty transaction and he paid the amount to the accused. PW1 also gave evidence regarding execution of Ext.P6 agreement between him and the accused regarding the transaction. 9. The plea of the accused was that he had stood as a surety to the complainant in the chitty transaction and he had given a signed blank cheque to the chitty company as security and that the complainant misused the aforesaid cheque and filed the case. 10. The aforesaid plea is inherently improbable. It eludes comprehension how the cheque given by the accused to the chitty company came into the possession of the complainant. 11. Moreover, the plea of the accused goes against Ext.P6 agreement executed between him and the complainant. The judgment of the trial court shows that the cheque is specifically mentioned in Ext.P6 agreement. PW1 gave evidence that Ext.P6 agreement was written in the handwriting of the accused. His evidence in that regard was not discredited. 12. Even assuming that Ext.P1 cheque was given as a security by the accused to the complainant at the time of Crl.R.P.No.147/2020 6 receiving the chitty amount from the complainant, as per the evidence of PW1, the accused had asked him to present the cheque in the bank when the amount became due to the chitty company. 13. PW1 gave evidence that Ext.P1 cheque was filled up by the accused in his own handwriting. The evidence of PW1 proves execution of Ext.P1 cheque and Ext.P6 agreement by the accused. Once execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. 14. The accused examined the Manager of the chitty company as DW1. The evidence of DW1 is that only an amount of Rs.83,000/- was given to the complainant as chitty amount from the company. However, the evidence of DW1 was based on incomplete documents kept in the chitty company. Moreover, in the light of the stipulations contained in Ext.P6 agreement, the evidence of DW1 cannot be relied upon. 15. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or Crl.R.P.No.147/2020 7 perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 16. Though the trial court imposed a sentence of simple imprisonment of one year on the petitioner/accused, the Crl.R.P.No.147/2020 8 appellate court has set aside the aforesaid sentence and imposed only a sentence of imprisonment till the rising of the court and fine of Rs.2,00,000/- on the petitioner/accused. The sentence imposed on the petitioner/accused by the appellate court does not warrant any interference. 17. Consequently, the revision petition is dismissed. Conviction of the petitioner for the offence punishable under Section 138 of the Act by the trial court, as affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the appellate court, is also confirmed. The petitioner/accused is granted a period of four months from today to deposit the fine amount in the trial court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**