Smitha Sabu v. Suryakanthi Chits Private Limited and State of Kerala

Crl.R.P.No.757/2023 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945 CRL.REV.PET NO. 757 OF 2023 AGAINST THE JUDGMEN IN CRIMINAL APPEAL NO. 267/2022 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS COURT, NORTH PARAVOOR DATED 19.04.2023 AND AGAINST THE JUDGMENT OF HONOURABLE JUDICIAL MAGISTRATE COURT, ANGAMALY DATED 19.07.2022 IN C.C. NO. 1977/2015. ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SMITHA SABU AGED 39 YEARS W/O T.K SABU, THOOMBAYIL HOUSE, OKKAL P.O., PIN - 683550 ``` ``` BY ADV R.DIVAKARANRAMAKRISHNAN ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1M/S SURYAKANTHI CHITS PRIVATE LIMITED HEAD OFFICE, ADAM CIRCLE, T.B JUMCTION, ANGAMALY REPRESENTED BY ITS DIRECTOR V.K. RAVI, S/O KUTTAPPAN, VATTAPPARA HOUSE, SREEVALSAM, OKKAL, ERNAKULAM, PIN – 683550. ``` ``` 2STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. ``` ``` SR PP P G MANU ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P.No.757/2023 ## **A.BADHARUDEEN, J.** ## **-----------------------------------------** **Crl.R.P.No. 757 of 2023 -----------------------------------------Dated this the 24[th] day of July, 2023** ## **O R D E R** This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘the Cr.P.C’ hereinafter) and the revision petitioner herein is the sole accused in C.C.No.1977/2015 on the files of the Judicial First Class Magistrate Court, Angamali. The revision petitioner assails judgment in the above case, dated 19.07.2022 and judgment in Crl.Appeal No.267/2022, dated 19.04.2023. 2. The respondents herein are State of Kerala as well as the original complainant. 3. Heard the learned counsel for the revision petitioner on admission and also the learned Public Prosecutor. Notice to the second respondent stands dispensed with. 3 Crl.R.P.No.757/2023 4. I shall refer the parties as ‘complainant’ and ‘accused’, for convenience. Short facts of the case: Pursuant to dishonour of cheque for Rs.6,02,000/(Rupees Six Lakh Two Lakh Thousand only), dated 20.11.2012, the complainant initiated prosecution against the accused, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for short). 5. The trial court secured the presence of the accused for trial and recorded evidence. The evidence is confined to that of PWs1 and PW3 and Exts. P1 to P17 marked on behalf of the complainant and Exts.D1 to D3 marked on the side of the accused. 6. 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 him, to adduce defence evidence. But, no defence evidence adduced. 4 Crl.R.P.No.757/2023 7. The trial court appreciated the evidence based on arguments tendered by both sides and finally convicted the accused for the offence punishable under Section 138 of the NI Act and he was sentenced to imprisonment till rising of Court and to pay compensation of Rs.10,00,000/- (Rupees Ten Lakh only) was ordered to be paid to the complainant. In default of payment of compensation, simple imprisonment for a period of eight months also was imposed. 8. The accused challenged the judgment of the trial court before the Sessions Court, North Paravur by filing Crl.Appeal No.267/2022. As per judgment, dated 19.04.2023, the learned Sessions Judge re-appreciated the evidence and concurred with the conviction while modifying the sentence for a day till rising of the court and also to pay fine of Rs. 10,00,000/- (Rupees Ten Lakh only). Default imprisonment for a period of five months also was imposed. 9. While assailing the concurrent verdicts, the learned counsel for the revision petitioner/accused initially submitted that the issuance of cheque as well as signature 5 Crl.R.P.No.757/2023 therein was denied by the accused who was examined as DW1, though Dw1 re-entered the witness box and admitted the signature in the cheque. 10. In this matter, the courts below relied the evidence of PW1 to PW3 and Exts P1 to P17 to hold that the complainant discharged his initial burden in the matter of transaction which led to execution of Ext.P1. 11. In this matter, the revision petitioner/accused raised a contention that she did not receive statutory notice and the signature in Ext.P11 acknowledgment card is not that of her. When the accused herself was examined as DW1 also, she denied the signature in Ext.P11. At the same time, the accused admitted that the addressing shown in Ext.P9 statutory notice is her shop address and the registration number of the said shop also is in her name. In view of the above evidence, the courts below negatived the contention that the accused did not receive statutory notice. 12. In fact, law regarding service of notice under Section 6 Crl.R.P.No.757/2023 138(b) of the N.I Act is well settled and issuance of notice in the correct address of the accused would suffice notice. The Apex Court considered the relevant provisions of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 in the decision reported in [2007 (2) KHC 932 : 2007 (2) KLD 148 : ILR 2007 (3) Ker. 203 : 2007 (6) SCC 555 : JT 2007 (7) SC 498 : 2007 (3) KLT 77 : 2007 (3) KLJ 81 : 2007 CriLJ 3214 : 2007 (3) SCC (Cri) 236 : 2007 (2) Guj LH 512 : 2008 (1) MPLJ 441 : 2008 (1) Mah LJ 44], _**C.C.Alavi Haji v. Palapetty Muhammed & anr.**_ and held as under: _“Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with_ 7 Crl.R.P.No.757/2023 _a postal endorsement `refused' or `not available in the house' or `house locked' or `shop closed' or `addressee not in station', due service has to be presumed.”_ 13. Thus the law regarding issuance of notice is no more _res-integra_ . Since Section 27 gives a presumption that service of notice has been effected when it is sent in correct address by registered post. If such a notice is returned for any reason without accepting the same, then service of notice is implied. 14. The specific case of the complainant was that the accused joined for a chitty in the company of the complainant and auctioned the same for Rs.7,95,000/- on 10.05.2011. Thereafter, after executing an agreement on 11.06.2011 and giving payment voucher signed by the accused, she received the chitty price to the tune of Rs.7,95,000/-. Thereafter the accused defaulted to pay chitty price from 12th installment onwards and accordingly Rs.5,60,000/- was kept in arrears. Thereafter the accused given cheque for Rs.6,02,000/- to discharge the liability, inclusive of Rs.42,000/- along with 12% interest. PWs 1, 2 and 3 were 8 Crl.R.P.No.757/2023 examined to prove the case of the complainant. It is strange to notice that the accused raised a contention before the court below that he did not join the chitty and she did not sign the documents relied on by the complainant. Similarly, as rightly observed by the trial court, till the date of examination of the accused as DW1 on 18.09.2021, the specific case of the complainant was that she did not sign Ext.P6 cheque. She was examined in chief, she denied signature in Ext.P6, but later admitted her signature. In view of the above, the courts below disbelieved the case put up by the accused and found that the complainant discharged his initial burden in the matter of transaction which led to execution of Ext.P6 cheque by producing necessary documents to prove that the accused joined the chitty and received the chitty price. Further the accused issued Ext.P6 cheque to discharge the liability arose out of the chitty transaction. Thus it appears that the trial court as well as the appellate court rightly given the benefit of presumptions under Sections 118 and 139 of the N.I Act in favour of the complainant. 9 Crl.R.P.No.757/2023 15. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I. Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions 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. 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. See decisions reported in **[2010 (2) KLT 682 (SC)], Rangappa v. Mohan; [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, [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** 10 Crl.R.P.No.757/2023 **(1) KLT OnLine 1132], Kalamani Tex (M/s.) & anr. v. P.Balasubramanian** . In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above. 16. It is relevant to refer a latest decision of the Apex Court reported in **[2022(5) KHC 560(SC)], Oriental Bank of Commerce v. Prabodh Kumar Tewari** , whereas it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 11 Crl.R.P.No.757/2023 17. In fact, the learned counsel miserably failed to substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available at this Court. 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. Decisions reported in **[(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda** , are on this point. 18. As I have already pointed out, in this case, the evidence of PW1 to PW 17 and Exts.D1 to D3, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly. 19. For the above reasons, this revision petition must fail and is accordingly, dismissed. Since the transaction is of the year 2012 and the fine amount is Rs. 10,00,000/(Rupees Ten Lakh only) I am inclined to grant four months time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 22.11.2023 and the accused is directed to appear before the trial court on 23.11.2023, either to pay the fine amount or to undergo the default sentence. 20. In default to do so, the trial court is directed to execute the sentence as per law without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. _Sd/-_ ## **A. BADHARUDEEN, JUDGE** mtk