S.R. Sivakumar v. Dr. Artist K.G. Nair and State of Kerala (CRL.R.P. Nos. 348 & 349 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945** **CRL.REV.PET NO. 348 OF 2019 AGAINST THE JUDGMENT DATED 10.12.2018 IN CRA 243/2015 OF ADDITIONAL SESSIONS COURT-IV, THIRUVANANTHAPURAM AND THE JUDGMENT DATED 31.07.2015 IN ST 58/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-VII, THIRUVANANTHAPURAM REVISION PETITIONER/APPELLANT/ACCUSED:** **S.R.SIVAKUMAR, AGED 54 YEARS T.C.8/919, CHERUVILAKATHU, PARVATHYVILASAM, ARAYALLOR, THIRUMALA P.O, THIRUVANANTHAPURAM.** **BY ADV S.CHANDRASEKHARAN NAIR** ## **RESPONDENTS/RESPONDENTS/DEFACTO COMPLAINANT & STATE:** **DR.ARTIST.K.G.NAIR** **1 CHELLENGE HOUSE, MUKTTAYCADU P.O, VENGANOOR, THIRUVANANTHAPURAM-695527.** **STATE OF KERALA,** **2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY L.R.DHANUJA R1 BY ADITHYA RAJEEV R1 BY GIRISH KUMAR M S R2 BY SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 09.01.2024, ALONG WITH Crl.Rev.Pet.349/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.Nos.348 & 349 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945** **CRL.REV.PET NO. 349 OF 2019 AGAINST THE JUDGMENT DATED 10.12.2018 IN CRA 244/2015 OF ADDITIONAL SESSIONS COURT-IV, THIRUVANANTHAPURAM AND THE JUDGMENT DATED 31.07.2015 IN ST 57/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-VII, THIRUVANANTHAPURAM REVISION PETITIONER/APPELLANT/ACCUSED:** **S.R.SIVAKUMAR. AGED 54 YEARS T.C. 8/919, CHERUVILAKATHU PARVATHYVILASAM, ARAYALLOR, THIRUMALA P.O., THIRUVANANTHAPURAM.** **BY ADV S.CHANDRASEKHARAN NAIR** ## **RESPONDENTS/RESPONDENTS/DEFACTO COMPLAINANT & STATE:** **DR. ARTIST.K.G.S.NAIR 1 CHALLENGE HOUSE, MUTTAYCADU P.O., VENGANOOR, THIRUVANANTHAPURAM 695 527.** **STATE OF KERALA, 2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI 682 031.** **BY ADVS. R1 BY ADITHYA RAJEEV R1 BY GIRISH KUMAR M S** **R2 BY SMT.PUSHPALATHA MK, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 09.01.2024, ALONG WITH Crl.Rev.Pet.348/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Crl.R.P.Nos.348 & 349 of 2019 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.Nos.348 & 349 of 2019** **----------------------------------------------------------Dated this the 9[th] day of January, 2024** ## **O R D E R** These revision petitions arose on a common judgment involving the same parties. Hence, these revision petitions are disposed of by this common order. 2. The petitioner is the accused in S.T.Nos.57 and 58 of 2014 on the files of the Judicial Magistrate of the First Class-VII, Thiruvananthapuram. The offence alleged is one punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act). The complaints are filed by the 1[st] respondent with the following allegations,- In relation to a transaction concerning gold ornaments, the petitioner had issued two cheques; one for Rs.1,50,000/- and the other for Rs.1,80,000/-. The cheques were presented for encashment, but returned unpaid due to the insufficiency of funds in the account of the petitioner. Demand notices were issued. The petitioner received the notices, but failed to repay the amount. 4 Crl.R.P.Nos.348 & 349 of 2019 3. The petitioner appeared before the court and denied the accusation. At the trial PW1 was examined and Exts.P1 to P8 were marked. After closing the evidence on the side of the prosecution, the petitioner was questioned under Section 313(1)(b) of the Code in both cases. He stated that 128.300 grams of gold entrusted by the 1[st] respondent with him in the form of 16 gold coins, were converted into ornaments and returned. The weight of the gold ornaments returned was 120.200 grams. The balance was lost on account of the making of gold ornaments. His further assertion was that on the insistence of the 1[st] respondent and his wife, two signed cheques and a signed paper affixed with revenue stamp were given by him besides receipt. At the time of returning the gold ornaments, the receipt was given back; but the cheques were retained on the pretext that after confirming the weight of the ornaments, the matter would be settled. In order to substantiate his case, he examined DWs.1 and 2. Although two documents were tendered in evidence, the trial court did not accept the same for want of proof. 5 Crl.R.P.Nos.348 & 349 of 2019 4. The trial court, after appreciating the evidence on record, found the petitioner guilty and convicted. It was held that having admitted execution of Exts.P1 and P2 cheques, it was the burden of the petitioner to rebut the presumption available under Section 139 of the N.I. Act. The evidence tendered by him was found insufficient to rebut the presumption. Accordingly, the trial court refused to accept the contentions of the petitioner. Before the appellate court, similar contentions were raised by the appellants, but he was unsuccessful. 5. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and the learned Public Prosecutor. 6. The petitioner during examination under Section 313(1)(b) of the Code admitted that he gave two cheques with his signatures to the complainant. His case is that the cheques along with one signed blank stamp paper were issued on the insistence of the 1[st] respondent when he handed over 16 gold coins to the petitioner for making gold ornaments. 6 Crl.R.P.Nos.348 & 349 of 2019 7. The learned counsel for the 1[st] respondent contended that in the light of the said admission, presumption under Section 139 of the N.I. Act is liable to be drawn concerning Exts.P1 and P2. The learned counsel for the petitioner, on the other hand, would submit that in the facts and circumstances of this case, failure to furnish details regarding the transaction in the complaint or in the proof affidavit of PW1, who is the power of attorney of the 1[st] respondent, no such presumption is possible. 8. The courts below took the view that the admission by the petitioner that he gave signed cheques to the 1[st] respondent is enough to draw a presumption under Section 139 of the N.I. Act. Apart from the said admission by the petitioner, DW1, an ex-employee of the petitioner, deposed before the court that it was he who handed over the cheques of the petitioner to the 1[st] respondent. The said version of DW1 together with the admission of the petitioner makes the evidence tendered by PW1 regarding issuance of the cheques wholly reliable. 7 Crl.R.P.Nos.348 & 349 of 2019 9. In **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197]** the Apex Court held that 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. It was further held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 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. 10. The Apex Court in **Basalingappa v. Mudibasappa** ## **[(2019) 5 SCC 418]** held that,- “23. We having noticed the ratio laid down by this Court in above cases on Section 118(a) and 139, we now 8 Crl.R.P.Nos.348 & 349 of 2019 summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. - (v) It is not necessary for the accused to come in the witness box to support his defence.” 11. Reiterating the aforesaid principles, a three Judge Bench of the Apex Court in **M/s Kalamani Tex and another** **v. P.Balasubramanian [(2021) 5 SCC 283]** held that the N.I.Act mandates that the signature of an accused on the cheque is established, then the 'reverse onus' clauses become 9 Crl.R.P.Nos.348 & 349 of 2019 operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. A similar view was taken by the Apex Court in **Rajesh Jain v.** **Ajay Singh [2023 SCC OnLine SC 1275]** also. It was held that Section 139 of the N.I. Act requires that the Court 'shall presume' the fact stated therein, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'. In view of the law laid down in the aforesaid decisions, a presumption under Section 139 of the N.I. Act is liable to be drawn in respect of Exts. P2 and P2(a) cheques produced in this case and of course, it is possible for the petitioner to rebut that presumption. 12. The learned counsel for the petitioner places reliance on **Joshy P.G. v. Jose Varghese and another** **[2019 (4) KHC 753]** in order to fortify his contention that 10 Crl.R.P.Nos.348 & 349 of 2019 for want of furnishing details of the transaction in the complaint, the evidence of the 1[st] respondent loses credibility and therefore the prosecution is bound to fail. It was held in the said decision that where the complainant in a prosecution for the offence under Section 138 of the N.I. Act is expected to state the nature of the debt or liability incurred by the accused and in the absence thereof, the evidence tendered by the complainant does not have credibility. It was, however, further held that the absence of averments in the complaint regarding the nature of debt or liability of the accused does not affect the maintainability of the complainant; but its effect is only that the credibility of the evidence tendered by the complainant would be adversely affected. The petitioner cannot recourse to the aforesaid principle in this case inasmuch as the petitioner himself admitted before the court that there was a transaction as averred in the complaint. What is lacking in the complaint is only the details of the transaction. It was stated in the complaint that concerning the making of gold ornaments the cheques were issued. Further 11 Crl.R.P.Nos.348 & 349 of 2019 details have been stated by the accused and brought out in evidence through his witnesses. In such circumstances, the failure to state the whole details of the transaction in the complaint does not have any adversity to the prosecution case. 13. In the nature of the contentions of rival parties, the pertinent question to be decided is whether the petitioner has succeeded in rebutting the presumption available in respect of Exts.P2 and P2(a). The petitioner asserted that he returned the gold ornaments to the 1[st] respondent in the presence of DW2 and the receipt issued by him at the time when he received the gold coins was returned to him. Also, it is claimed that PW1, who is the wife of the 1[st] respondent endorsed receipt of the ornaments in the account book maintained by him. The learned counsel for the petitioner highlighted those aspects and contended that the presumption in respect of the cheques has been duly rebutted. 14. In this case, the petitioner did not mount the box. It is not necessary always that the accused should lead 12 Crl.R.P.Nos.348 & 349 of 2019 evidence to rebut the presumption under Section 139 of the N.I.Act. He can rely on the evidence let in by the prosecution and circumstances and presumptions arising out of the materials on record for that purpose as held by the Apex Court in **Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay [AIR 1961 SC 1316].** It was held that a presumption of law or fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. 15. The same is the principle laid down in **Vinay Parulekar v. Pramod Meshram [2008 CriLJ 2405]** and **Kamala S. v. Vidyadharan M.J. and another [(2007) 5 SCC 264].** So **,** in order to rebut the presumption, the accused need not adduce positive evidence always but, he can even place reliance on the materials and circumstances in the prosecution evidence also to rebut the presumption. 16. Exts.P4 and P4(a) are the dishonour memos dated 31.03.2012. Demand notices were sent to the petitioner on 10.04.2012 which were received by him on 11.04.2012. The 13 Crl.R.P.Nos.348 & 349 of 2019 petitioner did not send any reply. If the gold ornaments were returned and the receipts were received back, that was the first occasion for the petitioner to inform that fact and ask the first respondent to desist from initiating prosecution, but he failed. From the evidence on record, it is explicit that the 1[st] respondent denied receipt of gold ornaments and issuance of the receipt for receiving back the gold ornaments. His case is that the gold ornaments were not returned and towards the value of the ornaments Exts.P2 and P2(a) cheques were issued. If such a receipt was issued as contained in Ext.D2, PW1 should have been confronted with that document during her examination. Ext.D1 is said to be a receipt returned by PW1. That document was also not confronted to PW1 at the defence evidence stage. That makes his evidence doubtful. Exts.D1 and D2 have not been duly proved. In such circumstances, producing such documents without any formal authority is insufficient to prove the fact proposed to be true. In such circumstances, I am of the view that the petitioner totally failed to substantiate that the gold ornaments were 14 Crl.R.P.Nos.348 & 349 of 2019 returned as he claimed. Similarly, the petitioner failed to substantiate that Exts.P2 and P2(a) were in fact issued as security. He thus failed to rebut the presumption available in respect of Exts.P2 and P2(a). 17. The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. [See: **State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015) 3 SCC 123; Kishan Rao v. Shankargouda (2018) 8 SCC 165].** 15 Crl.R.P.Nos.348 & 349 of 2019 18. viewed in the light of the law laid down in the aforesaid decisions, this Court is not expected to re-appreciate the evidence and to reach an independent finding in total disregard of the concurrent findings entered into by the courts below. The findings of the courts below are based on a proper appreciation of evidence and cannot be said to be perverse. Hence, the conviction of the appellant is not liable to be interfered with. 19. The sentence imposed on the petitioner is simple imprisonment for a period of one month and to pay fine. Considering the nature of the transaction, I am of the view that the sentence is liable to be modified by avoiding substantive sentence of imprisonment. Accordingly, the revision petitions are allowed in part. On confirming the conviction, the petitioner-accused is sentenced to pay a fine of Rs.2,00,000/- in Crl.R.P.No.348 of 2019 (S.T.No.58 of 2014) and Rs.2,50,000/- in Crl.R.P.No.349 of 2019 (S.T.No.57 of 2014). In the event of failure to pay the amounts of fine, the petitioner shall undergo simple imprisonment for a period of 16 Crl.R.P.Nos.348 & 349 of 2019 two months in each case. If the fine amounts are realised, the same shall be paid to the 1[st] respondent as compensation under Section 357(1)(b) of the Code. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dxy/dkr