Sreelakshmi Traders, Munnar Town, Idukki District v. Manayathumariyil Hardwares, Paingottoor Kara, Kadavoor Village, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 CRL.REV.PET NO. 795 OF 2022** **AGAINST THE ORDER/JUDGMENT IN C.C.NO.1922/2017 OF JUDICIAL FIRST CLASS MAGISTRATE, MUVATTUPUZHA DATED 22.10.2019 IN CRL.A.NO. 348/2019 OF ADDITIONAL DISTRICT & SESSIONS JUDGE, MUVATTUPUZHA** ## **DATED 23.08.2022** ## **PETITIONER/APPELLANT/ACCUSED:** **M/S. SREELAKSHMI TRADERS, MUNNAR TOWN, IDUKKI DISTRICT REPRESENTED BY ITS OWNER LAKSHMI M., AGED 35 YEARS, SREELAKSHMI TRADERS, MUNNAR, PIN - 685612 BY ADVS. BINU PAUL JEAN ALEX** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 M/S. MANAYATHUMARIYIL HARDWARES PAINGOTTOOR KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK REPRESENTED BY ITS OWNER FRANCIS JACOB, AGED 55 YEARS, S/O JACOB, MANAYATHUMARIYIL HOUSE, PAINGOTTOOR KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, PIN - 686671 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN - 682031 BY ADV SHINE MATHEWS(VADAKKEKARA) PP-SRI.G.SUDHEER** ## **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No. 795 of 2022 2 ## **ORDER** ## **Dated this the 21st day of November, 2022** This revision petition has been filed under Sections 397 and 401 of Cr.P.C. The revision petitioner is the accused in C.C.No.1922/2017 on the files of the Judicial First Class Magistrate Court, Muvattupuzha. He impugns the judgment dated 23.08.2022 in the above case and the judgment in Crl.A.No.348/2019 on the file of the Additional District and Sessions Judge, Muvattupuzha arising therefrom. 2. The respondents herein are the original complainant as well as the State of Kerala. 3. Heard the learned counsel for the revision petitioner on admission. Notice to the 1[st] respondent dispensed with. 4. Short facts of the case:- The complainant M/s. Manayathumariyil Hardwares, Paingottoor Kara launched prosecution alleging offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as Crl.R.P No. 795 of 2022 3 N.I. Act for convenience) when cheque for an amount of Rs.5,34,650/- issued by the accused got dishonored for want of funds, when the same was presented for collection. 5. According to the complainant, even after issuance of demand notice, no repayment effected. Thus prosecution was launched. 6. While assailing the concurrent verdicts of the trial court as well as the Appellate Court, the learned counsel for the revision petitioner argued that, in this matter, M/s Sreelakshmi Traders, Munnar alone was arrayed as an accused and the Proprietor was not arrayed as an accused. Therefore the prosecution itself is bad in law and as such the entire conviction and sentence imposed by the trial court as well as the Appellate Court are liable to be set aside. 7. In view of this argument, I have perused the description of the name of the accused in the cause title. It has been described that, 'M/s Sreelakshmi Traders, Munnar Town, Idukki, represented by its owner Lakshmi Crl.R.P No. 795 of 2022 4 M., aged 35 years, Sreelakshmi Traders, Munnar'. The above narration would go to show that Lakshmi M., being the owner of the above proprietary concern was arrayed as the accused and the same is well within the ambit of law. Therefore, though the contention raised by the revision petitioner on that ground could not succeed. 8. In this matter, the trial court as well as the appellate court believed the evidence of PW1 and Exts.P1 to P6 to hold that, the accused committed offence punishable under Section 138 of the N.I.Act and thereby the benefit of twin presumptions was given in favour of the complainant. 9. 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 punishable 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_ Crl.R.P No. 795 of 2022 5 _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 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_ Crl.R.P No. 795 of 2022 6 _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.”_ 10. 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_ Crl.R.P No. 795 of 2022 7 _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. 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.”_ 11. 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], _**M/s.Kalamani Tex & 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_ Crl.R.P No. 795 of 2022 8 _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 2[nd] 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 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_ Crl.R.P No. 795 of 2022 9 _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.”_ 12. In this matter, while assailing the concurrent verdicts, apart from the above point nothing argued to exercise the limited power of revision available to this Court to enter into a contra finding. 13. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C. r/w Section 397, which is not wide and exhaustive to re-appreciate 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_ Crl.R.P No. 795 of 2022 10 _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 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. ...”_ 14. 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 Crl.R.P No. 795 of 2022 11 - 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 non-consideration 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_ Crl.R.P No. 795 of 2022 12 _not interfere with decision in exercise of their revisional jurisdiction.”_ 15. 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 non-consideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available. 16. In this matter, the trial court, after convicting the accused for the offence punishable under Section 138 Crl.R.P No. 795 of 2022 13 of the N.I.Act, sentenced her to undergo imprisonment till the raising of the court and to pay fine of Rs.5,34,650/and the same was ordered to be paid as compensation to the complainant. In default of payment of fine, three months default imprisonment also was imposed. 17. Though, the judgment of the trial court was challenged in Crl.A.No. 348/2019, the learned Additional District and Sessions Judge, Muvattupuzha, concurred the finding and accordingly the appeal also was dismissed. 18. On scrutiny of the available materials, nothing substantiated to revisit the concurrent verdicts in any manner by exercising the power of revision. Therefore the revision must fail. 19. Faced with the situation, the learned counsel for the revision petitioner sought eight months time to pay the fine amount. 20. In the result, this revision petition fails and is accordingly dismissed. However, taking note of the prayer made by the learned counsel for the revision petitioner, I am inclined to grant two months time from today to the Crl.R.P No. 795 of 2022 14 ## revision petitioner/accused to pay the amount. Therefore the revision petitioner/accused is directed to surrender before the Trial Court on 20.01.2023 to undergo the sentence and to pay the fine. If the accused fails to surrender as directed, the Trial Court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 19.01.2023. **Sd/-** SK/21.11 **A. BADHARUDEEN JUDGE**