High Court of KeralaSingle Judge2023-08-07Dismissed with directions for payment of fine w...

Subhash K.R. v. State of Kerala

Case / Petition Number:CRL.REV.PET NO.730 OF 2023

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen Monday
Judgment Date: 2023-08-07
Court Decision / Holding: This revision petition is dismissed. However, in consideration of the petitioner’s request to grant time to pay the compensation/fine, the court grants three months’ time from today to pay the fine. The accused shall appear before the trial court on 07.11.2023 to pay the fine/compensation or to undergo the default sentence. Execution of the sentence is deferred till 06.11.2023.
Final Disposition: Dismissed with directions for payment of fine within three months; execution of sentence deferred; trial court to ensure compliance and monitor appearance on 07.11.2023.

Parties to the Case

Appellants / Petitioners

Subhash K.R., S/o Raghavan, PanakavileMeethal House, Vythiri Post, Kalpetta, Wayanad, PIN - 673577

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam, PIN - 682031
Sidhiqque aged 34 years S/o Thacharappadikkal Hamsa, Proprietor K.B. Traders, Kappamkolly, Meppadi P.O., Wayanad District, PIN - 673577

Legal Representation & Advocates

Counsels for Petitioners

• M.R. Sasith

Counsels for Respondents

• Sri. M.P. Prasanth, Public Prosecutor

Case Synopsis & Summary

Subhash K.R., the revision petitioner, challenges a conviction under Section 138 of the Negotiable Instruments Act (NI Act) and the concomitant sentences recorded by the JFCM Kalpetta and later affirmed in the Sessions Court. The trial court found that the accused purchased materials worth Rs. 1,85,400 on credit from the complainant and issued a cheque for the same amount, which dishonoured for want of funds. The complainant served a notice and filed NI Act proceedings. The trial court convicted the accused under Section 138 NI Act, and directed payment of Rs. 1,78,000 as fine with compensation of Rs. 1,76,000 under Cr.P.C. The Sessions Court partly allowed the appeal, maintaining the conviction but modifying the sentence to imprisonment till rising of the court and increasing the fine to Rs. 1,78,000, with a default sentence of three months. The High Court, noting the limited scope of revision under Cr.P.C. and the well-settled law on presumptions under Sections 118 and 139 NI Act, dismissed the revision but granted three months’ time to pay the fine on account of fairness to the accused. The court also directed the trial court to supervise payment and defer execution of the sentence until 06.11.2023, with appearance on 07.11.2023.

Provisions of Law Cited

Cr.P.C. Sec. 397Cr.P.C. Sec. 401Cr.P.C. Sec. 313(1)(b)NI Act Sec. 138Cr.P.C. Sec. 357(1)NI Act Secs. 118 and 139

Legal Doctrines & Maxims

Presumptions under NI Act Secs. 118 and 139 are rebuttable
Standard of rebuttal is preponderance of probabilities
Presumption evidence can be met by independent evidence or by the complainant’s evidence
Revision jurisdiction under Cr.P.C. Sec. 401 is not wide and exhaustive

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the concurrent convictions and the sentence are not sustainable in law as the prosecution failed to establish the transaction beyond reasonable doubt and that the cheque was issued only as security, with no independent evidence to substantiate the defence. The defence relies on the assertion that the complainant’s evidence, Exts. P1–P7 and two witnesses, is insufficient to discharge the initial burden, and that reliance on presumptions under Sections 118 and 139 NI Act should have been rebutted by the accused. The petitioner also submits that the trial and appellate courts have not properly evaluated the defence and that the sentence could be moderated to avoid undue hardship, as suggested by the counsel. The petitioner concedes three months’ time to pay the fine in lieu of immediate payment to avoid compounding the default sentence, a concession sought to balance justice with practical hardship.

Contentions of Respondents

The State/complainant contends that the evidence before the trial court established the transaction and the issuance of the cheque in discharge of the liability, making the presumptions under Sections 118 and 139 NI Act operate in the complainant’s favour. The respondents argue that the trial court’s conviction is well-founded and that the revision petition should not re-appreciate evidence, in line with the settled jurisprudence on revisional power. They contend that the Sessions Court’s modification of sentence was within appellate authority but maintain the fundamental conviction. The State also emphasizes the need to uphold the statutory presumption and the proper application of Section 138 NI Act, arguing against unwarranted interference with concurrent verdicts.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Puttumana Illath Jathavedan Namboodiri	(1999) 2 SCC 452	Mentioned Only	Cited as part of the discussion on the limits of revision powers; used to illustrate the point that revision is not wide enough to re-appreciate evidence to reach a contrary finding.
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke	(2015) 3 SCC 123	Positive	Cited as on-point authority regarding limitations of revisional power and standard practice in revisional scrutiny.
Kishan Rao v. Shankargouda	(2018) 8 SCC 165	Mentioned Only	Cited in the context of the point about revision power; not expressly adopted or distinguished in the present analysis.
Rangappa v. Mohan	2010 (2) KLT 682 (SC)	Positive	Established that presumptions under NI Act are rebuttable and rebuttal must be by preponderance of probabilities; relied upon to support the applicant’s position.
Bir Singh v. Mukesh Kumar	(2021) (5) SCC 283	Positive	Cited as a leading authority affirming rebuttable presumptions under NI Act and the standard of proof for rebuttal.
Kalamani Tex (M/s.) & anr. v. P.Balasubramanian	/	Positive	Cited as supportive authority on the same legal principle governing presumptions and their rebuttal under NI Act.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945** **CRL.REV.PET NO. 730 OF 2023** **JUDGMENT IN CRA 4/2019 OF SESSIONS COURT, KALPETTA, WAYANAD JUDGMENT IN STC 147/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **COURT, KALPETTA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SUBHASH K.R AGED 45 YEARS S/O RAGHAVAN, PANAKAVILMEETHAL HOUSE, VYTHIRI POST, KALPETTA, WAYANAD, PIN - 673577 BY ADV M.R.SASITH ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SIDHIQUE AGED 34 YEARS S/O THACHARAPPADIKKAL HAMSA, PROPRIETOR K.B. TRADERS, KAPPAMKOLLY, MEPPADI P.O., WAYANAD DISTRICT., PIN - 673577 BY ADV.SRI.M P PRASANTH, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.730/2023 2 ## **ORDER** _Dated this the 7[th] day of August, 2023_ This revision petition is filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for convenience), challenging judgments in STC No.147 of 2016 dated 10.01.2019 on the files of the Judicial First Class Magistrate Court, Kalpetta, and also in Crl.A.No.4 of 2019 dated 20.01.2022 on the files of the Sessions Court, Kalpetta, Wayanad. 2. Revision petitioner is the accused in the above case. Respondents herein are the original complainant as well as State of Kerala. 3. Heard the learned counsel for the revision petitioner/accused, learned counsel appearing for the defacto complainant/second respondent and the learned Public Prosecutor representing the State/first respondent and perused the materials. 4. I would like to refer the parties in this revision petition as ‘complainant’ and ‘accused’ for convenience. 5. The brief facts of the case put up by the complainant before the trial court are as under : Crl.R.P.No.730/2023 3 The accused purchased materials worth Rs.1,85,400/- from the shop of the complainant on credit and in discharge of the liability, he had issued a cheque for Rs.1,85,400/- drawn on Syndicate Bank, Kalpetta Branch dated 22.12.2015. Though the complainant presented the cheque for collection, the same got dishonoured for want of funds. Further case of the complainant was that despite having issued notice of demand, the said amount was not paid. On this premise, complainant lodged a complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the N.I.Act’ hereinafter). 6. The trial court secured presence of the accused and the complainant for trial and tried the matter. During trial, PWs 1 and 2 were examined and Exts.P1 to P7 were marked. On completion of prosecution evidence, 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 was adduced. 7. On appreciation of available evidence, after hearing both sides, the trial court convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced as under : _“In the result, the accused is_ Crl.R.P.No.730/2023 4 _convicted and sentenced to undergo simple imprisonment for four months and to pay a fine of Rs.1,78,000/- (Rupees One Lakh and Seventy Eight Thousand only). In case of default of payment of fine, the accused shall undergo simple imprisonment for a period of two months. Fine amount if realised Rs.1,76,000/- shall be paid as compensation to the complainant under Section 357(1) of Cr.P.C. balance amount shall be remitted to the Government.”_ 8. Aggrieved by the judgment of the Judicial First Class Magistrate Court, Kalpetta, revision petitioner filed appeal before the Sessions Court, Kalpetta, Wayanad, and on re-appreciation of evidence, learned Sessions Judge partly allowed the appeal as under : _“In the result,_ _1. Criminal Appeal is partly allowed._ _2. Finding of conviction by the trial court is upheld._ _3. Sentence imposed on the appellant/accused is modified to the effect that the appellant/accused shall undergo imprisonment till rising of the court and he shall pay a fine of Rs.1,78,000/- (Rupees One Lakh Seventy Eight Thousand only)._ _4. In default of payment of fine, the appellant shall undergo simple imprisonment for a period of three months._ _5. Out of the fine amount, if_ Crl.R.P.No.730/2023 5 _realised, a sum of Rs.1,76,000/(Rupees One Lakh Seventy Six Thousand only) shall be paid to the complainant as compensation under Section 357(1) of Cr.P.C.”_ 9. Now the revision petitioner/accused assails concurrent findings of conviction and sentence. While arguing this revision, it is fairly conceded by the learned counsel for the revision petitioner that the revision petitioner will be satisfied grant of six months' time to pay the fine amount, as nothing to be argued to unsettle the concurrent verdicts. 10. On perusal of the judgments of the courts below, it is discernible that the case put up by the accused was that at the time when he purchased materials worth Rs.1,85,400/- from the complainant, he had issued Ext.P1 cheque as security, but no independent evidence adduced or nothing extracted during cross examination to substantiate the defence case. The courts below concurrently held that the complainant discharged his initial burden in the matter of transaction led to execution of the cheque relying on the evidence of PWs 1 and 2 and Exts.P1 to P7. Therefore, complainant could very well avail the benefit of twin presumptions under Sections 118 and 139 of the N.I.Act. Crl.R.P.No.730/2023 6 Accordingly, the accused was convicted and sentenced as indicated above. 11. 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. 12. 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**_ Crl.R.P.No.730/2023 7 _**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 (1) KLT OnLine 1132], Kalamani Tex (M/s.) & anr. v. P.Balasubramanian**_ . 13. 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 finding found to be justified, in view of the discussion held above. 14. For the above reasons, this revision petition must fail and is accordingly, dismissed. However, in consideration of the request of the learned counsel for the revision petitioner to grant six months' time to pay the compensation, I am inclined to grant three months' time from today to pay the fine amount. The revision petitioner shall appear before the trial court on 07.11.2023 to pay the fine/compensation or to undergo the default sentence. Execution of sentence stands deferred till 06.11.2023. 15. If the revision petitioner/accused fails to appear before the trial court, as directed, the trial court is directed to execute the Crl.R.P.No.730/2023 8 sentence without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** csl