Sreeja Jayakumar v. Vijaya Kurees Eruva Muri and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945** **CRL.REV.PET NO. 801 OF 2023** **JUDGMENT DATED 31.3.2023 IN CRA 14/2021 OF ADDITIONAL SESSIONS** **COURT - III, MAVELIKKARA** **CC 10/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KAYAMKULAM REVISION PETITIONER/APPELLANT/ACCUSED:** SREEJA JAYAKUMAR AGED 50 YEARS W/O. JAYAKUMAR, KOPPARATHEKKATHIL, KAYAMKULAM PO, KAYAMKULAM VILLAGE, KAYAMKULAM TALUK, PIN - 690502 BY ADV A.SHAFEEK (KAYAMKULAM) ## **RESPONDENTS/RESPONDENTS 1 & 2/COMPLAINANT & STATE:** 1 VIJAYA KUREES ERUVA MURI, PAHTHIYOOR VILLAGE REPRESENTED BY PARTNERS G. VIJAYAN, S/O. GOVINDNAN, KRISHANSREE, ERUVA MURI, ERUVA PO, PATHIYOOR VILLAGE, PIN - 690552 2 G. VIJAYAN AGED 64 YEARS, S/O. GOVINDAN, KRISHNASREE, ERUVA MURI, ERUVA PO, PATHIYOOR VILLAGE, PIN - 690552 3 STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 SR PP SRI.P G MANU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.REV.PET NO.801 OF 2023** **2** ## **ORDER** ## _**Dated this the 10[th] day of August, 2023**_ This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for convenience). The revision petitioner is the accused in C.C.No.10/2018 on the files of the Judicial First Class Magistrate Court-II, Kayamkulam. He impugns judgment dated 06.01.2021 in C.C.No.10/2018 as well as judgment in Crl.Appeal No.14/2021 dated 31.03.2023 on the files of the Additional Sessions Court-III, Mavelikara. Respondent Nos.1 to 3 herein are complainant Nos.1 and 2 as well as State of Kerala. 2. Heard the learned counsel for the revision petitioner, respondents 1 and 2 and the learned Public Prosecutor. 3. I shall refer the parties in this revision petition as to their status before the trial court as `complainant' and `accused', for convenience. 4. The brief facts of the case put up by the complainant before the trial court are as under: The accused was a subscriber of chitty No.103/2012 **CRL.REV.PET NO.801 OF 2023** **3** conducted by the first complainant as chital No.22 and she received the chitti prize money of Rs.3,50,000/- on 07.04.2013 after executing necessary documents and thereafter, the chitty prize amount was kept in arrears. Even though the accused had remitted the chitty amount up to 9[th] instalment, she defaulted chitty amount from 10[th] instalment onwards. In order to repay the amount, cheque for Rs.2,00,000/- dated 16.01.2015 drawn on Syndicate Bank, Kayamkulam Branch, was issued by the accused. Though the complainant presented the cheque for collection, the same got dishonoured for the reason ‘funds insufficient’. Despite having issued notice of demand, the said amount was not paid. On this premise, complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the N.I.Act’ hereinafter) was registered. 5. The trial court secured presence of the accused and complainant Nos.1 and 2 for trial and tried the matter. During trial, complainant Nos.1 and 2 got examined as PW1 and PW2 and Exts.P1 to P10 were marked. On completion of prosecution evidence, accused was questioned under Section 313(1)(b) of **CRL.REV.PET NO.801 OF 2023** **4** the Cr.P.C. and opportunity was provided to him, to adduce defence evidence, but no evidence was adduced. 6. The trial court appreciated the evidence based on arguments tendered by both sides and finally convicted and sentenced the accused as under: _“ In the result,_ _(1) the accused is found guilty of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and is convicted thereunder as provided under Section 255(2) of the Code of Criminal Procedure, 1973._ _(2) The accused is sentenced to undergo simple imprisonment for three months under Section 138 of the Negotiable Instruments Act, 1881._ _(3) The accused is directed to pay Rs.2,00,000/- (Rupees Two Lakh only) to the complainant as compensation under Section 357(3) of the Code of Criminal Procedure, 1973, in default of the payment of compensation, the accused shall undergo simple imprisonment for one month more._ _(4) The bail bond of the accused stands cancelled.”_ 7. The accused challenged the judgment of the trial court before the Appellate Court. As per judgment dated 31.03.2023 in Crl.Appeal No.14/2021, the learned Additional Sessions Judge-III, Mavelikara, also confirmed the conviction as well as the sentence imposed by the trial court. **CRL.REV.PET NO.801 OF 2023** **5** 8. In this case, while assailing the concurrent verdicts of conviction as well as sentence, the learned counsel for the accused argued at length to convince this Court that complaint is barred by limitation. The said contention, in a way, has been raised before the trial court on the assertion that the complainant issued two notices viz. Ext.P4 notice dated 05.02.2015 and Ext.P7 correction notice dated 16.03.2015 and the contention raised before the trial court was that if the second notice is accepted and the notice of demand was issued beyond 30 days provided under Section 138(b) of the N.I.Act, there is no proper legal notice in this matter. 9. While addressing the contention raised by the accused, in point No.2 of paragraph No.13, the learned Magistrate found that notice was issued on 05.02.2015 and after getting intimation on 23.01.2015, the same was accepted by the accused on 07.02.2015. Thereafter, complaint was filed on 23.03.2015 and therefore, the complaint was filed within 30 days from the date of dishonour. Similar contention was also raised before the appellate court. The appellate court also considered the said challenge and held that Ext.P4 notice is the **CRL.REV.PET NO.801 OF 2023** **6** notice of demand and Ext.P7 is a correction notice which did not contain anything as to demand and cannot be treated as a notice of demand. Further it was found that complaint was filed within time since the period of 30 days was started from 07.02.2015. It is to be noted that, calculating the period of limitation in consideration of the fact that the month of February, intervening the period, is having only 28 days, the finding of the trial court as well as the appellate court that the complaint was filed in time is correct. Therefore, this contention found to be not sustainable. 10. Nothing argued otherwise to unsettle the concurrent verdicts of conviction and sentence imposed by the trial court as well as the appellate court. Here the case of the complainant is that the accused joined for chitty No.103/2012 conducted by the first complainant as chital No.22 and he received the chitti prize on 07.04.2013 after executing necessary documents. Thereafter, the accused defaulted chitty amount from 10[th] instalment onwards. In order to repay the amount cheque for Rs.2,00,000/- dated 16.01.2015 drawn on Syndicate Bank, Kayamkulam, was issued. PWs 1 and 2 supported the case of the complainant and acting on the evidence of PWs 1 and 2 **CRL.REV.PET NO.801 OF 2023** **7** supported Exts.P1 to P5, the courts below found that the complainant discharged his initial burden in the matter of transaction which led to execution of the cheque and accordingly, the benefit of twin presumptions under Sections 118 and 139 of the N.I. Act was given to the complainant. Accordingly, the accused was convicted and sentenced. 11. The 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**_ **CRL.REV.PET NO.801 OF 2023** **8** _**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 (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. 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 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. 13. On appreciation and re-appreciation of evidence, the trial court as well as the appellate court rightly entered into the **CRL.REV.PET NO.801 OF 2023** **9** conviction and the said conviction does not require any interference at the hands of this Court. Regarding sentence, the trial court imposed three months’ simple imprisonment and the same was confirmed by the appellate court. 14. In the interest of justice, sentence requires modification to ensure payment of the cheque amount. Therefore, the substantive sentence imposed by the trial court and confirmed by the appellate court for a period of three months stands modified to a day till the rising of the court and to pay fine of Rs.2,00,000/- (Rupees Two Lakh only) and fine amount shall be paid as compensation to the complainant under Section 357(1)(b) Cr.P.C. and in default of payment of fine, the accused shall undergo default imprisonment for a period of four months. 15. Learned counsel for the accused sought for eight months time to pay the cheque amount. It appears that the cheque is of the year 2015 pertaining to the transaction of the year 2013. Considering the request of the learned counsel for the accused, I am inclined to grant four months’ time from today, to the accused to pay the fine amount. Therefore, **CRL.REV.PET NO.801 OF 2023** **10** execution of the sentence shall stand deferred till 10.12.2023 and the accused is directed to appear before the trial court on 11.12.2023, either to pay the fine amount or to undergo the default sentence. 16. Registry is directed to forward a copy of this order to the trial court for information and compliance. The revision petition stands allowed in part as indicated above. **Sd/-** **A. BADHARUDEEN JUDGE** csl