Sudhakumari v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944** **CRL.REV.PET NO.905 OF 2022** **AGAINST THE ORDER/JUDGMENT IN ST NO.3784/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PERUMBAVOOR JUDGMENT IN CRL.APPEAL NO.300/2020 ON TEH FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, MUVATTUPUZHA** ## **PETITIONER/CRIMINAL REVISION PETITIONER:** SUDHAKUMARI, AGED 48 YEARS, W/O.NANDAKUMAR, RESIDING AT VAZHAYIL HOUSE, NEW MUDIKKAL P.O, PERUMBABVOOR VILLAGE, ERNAKULAM DISTRICT, PIN – 683547. BY ADVS. ANOOP.V.NAIR E.ADITHYAN ROHAN MAMMEN ROY ## **RESPONDENTS/COMPLAINANT/STATE:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. 2 AMBIKA MOHANAN, AGED 52 YEARS, W/O.LATE MOHANAN, RESIDING AT MUTTATHUKUDY HOUSE, KODANADU P.O, KURICHILAKKOD, ERNAKULAM DISTRICT, PIN – 683544. 3 DEESHMA M.M, AGED 24 YEARS, D/O. LATE MOHANAN, MUTTATHUKUDY HOUSE, KODANADU P.O, KURICHILAKKOD, ERNAKULAM DISTRICT, PIN – 683544. BY ADV. SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.R.P.No.905 of 2022** 2 ## **O R D E R** ## **Dated this the 12[th] day of January, 2023** This Revision Petition has been filed under Sections 397(1) and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the sole accused in S.T. No.3784/2014 on the file of the Judicial First Class Magistrate Court-I, Perumbavoor, arraying the original complainants as the 2[nd] and 3[rd] respondents and State of Kerala as the 1[st ] respondent. 2. The revision petitioner impugns judgment in S.T.No.3784/2014 dated 13.11.2020 on the file of the Judicial First Class Magistrate Court-I, Perumbavoor and the judgment in Criminal Appeal No.300/2020 dated 25.10.2022 on the file of the Additional Sessions Judge, Muvattupuzha arising therefrom. 3. Heard the learned counsel for the revision petitioner, learned counsel for the 2[nd] ## **Crl.R.P.No.905 of 2022** **==> picture [7 x 9] intentionally omitted <==** and 3[rd] respondents as well as the learned Public Prosecutor. **==> picture [391 x 13] intentionally omitted <==** revision as 'complainant' and 'accused' for easy reference. 5. The brief facts of the case put up by the complainant before the trial court are as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short), by the accused, when cheque for Rs.6,00,000/- dated 21.02.2014 alleged to be issued by the accused to the complainant to repay the said sum, which was originally borrowed on 30.03.2013, got dishonoured for want of sufficient funds, when it was presented for collection. 6. The trial court proceeded with trial. During trial, PW1 was examined and Exts.P1 to P6 ## **Crl.R.P.No.905 of 2022** **==> picture [7 x 9] intentionally omitted <==** were marked on the side of the complainants. 7. On completion of prosecution evidence, the accused was questioned under Section 313(1) (b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, DW1 was examined and Ext.D1 marked on the side of the accused. 8. The trial court appraised the evidence and finally found that the accused committed offence punishable under Section 138 of the NI Act and he was sentenced to undergo simple imprisonment for a period of three months and also pay fine of Rs.6,00,000/- (Rupees Six Lakh Only). The fine was ordered to be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. It was ordered further that in case of default in payment of fine, the accused would undergo simple imprisonment for a further period of Six months. 9. The judgment in S.T.No.3784/2014 dated 25.10.2022 was challenged before the Additional **Crl.R.P.No.905 of 2022** **==> picture [7 x 9] intentionally omitted <==** Sessions Court, Muvattupuzha. The learned Sessions Judge also confirmed the said conviction and modified sentence as per judgment dated 25.10.2022 in Crl.Appeal No.300/2020, as under: _The appeal is allowed in part. The conviction recorded by the learned Magistrate is confirmed. Substantive sentences of imprisonment for three months and fine of Rs.6,00,000/- imposed by the trial Court is reduced to imprisonment till rising of the Court and fine of Rs.6,00,000/-. In default in paying the fine, the accused shall undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the wife and daughter of the deceased complainant as compensation u/s.357(1)(b) Cr.P.C. The learned Magistrate shall take steps for execution of the sentence._ 10. The concurrent verdicts entered into by the trial court as well as by the appellate court are under challenge in this revision petition. 11. In this case, the courts below relied on the evidence of PW1 and Exts.P1 to P6 to hold that the complainant herein discharged his ## **Crl.R.P.No.905 of 2022** 6 initial burden in the matter of transaction led to execution of Ext.P1 cheque. 12. When the matter is taken to appeal, the appellate court also appreciated the evidence and finally concurred the finding. 13. While assailing the concurrent verdicts of conviction as well as the sentence imposed by the trial court as well as the appellate court, the learned counsel for the revision petitioner reiterated the contentions raised before the trial court as well as the appellate court. It is submitted that six cheque leaves kept in her bag were lost from the textile shop, in which she was employed and she made complaint in this regard. The case put up by the accused that one among the six cheques was misused by the complainant to file this case. It is relevant to note that the accused denied her signature in Ext.P1. It is in this context, it is argued by the learned counsel for the petitioner that when the accused denied her signature in the cheque, ## **Crl.R.P.No.905 of 2022** 7 the same should have been forwarded to Forensic Science Laboratory (FSL) for getting expert opinion as to the genuineness of the signature in Ext.P1. But the records do not suggest that any steps taken by the accused in this regard. 14. It is true that when there is denial of signature, FSL report being opinion evidence can be a corroborative piece of evidence and the proof of signature and execution are matters to be decided based on the substantiate evidence. Therefore, there is no harm in relying on corroborative piece of evidence as well, to allay the controversy. In this matter, in fact, it appears that Ext.D1 FIR in Crime No.2672/2015 of Perumbavoor Police Station was registered against 9 persons including the complainant herein alleging commission of offences under Sections 420 and 506(1) read with Section 34 IPC on the allegation that accused Nos.1 to 3 therein namely Latha, Sarah and Baby had started Chithira Textiles and issued the cheques of the ## **Crl.R.P.No.905 of 2022** 8 accused herein to accused Nos.4 to 9 arrayed in Ext.D1 after forging her signatures therein and also they had threatened the accused herein when she questioned the acts of accused arrayed in Ext.D1. The courts below were not inclined to give any emphasis to Ext.D1 and the evidence of DW1, the accused herself, on finding that the complaint led to Ext.D1 itself was filed on 01.07.2015, after taking cognizance in this matter, acting on a complaint filed by the complainant as early in the year 2014. 15. In so far as Ext.D1 and DW1 are concerned, the same can only be treated as an attempt to defend the case filed subsequent to lodging of this complaint and cognizance thereof, that too, after one year from the date of filing the complaint. Therefore, the evidence of DW1 and Ext.D1 cannot have any significance as found by the courts below in order to appreciate the case put up by the accused. To the contrary, the evidence of PW1 in the matter ## **Crl.R.P.No.905 of 2022** 9 of transaction and execution of the cheque found to be reliable by the courts below. Since the evidence of PW1 not shaken during crossexamination, the courts below rightly relied on the said evidence to enter into conviction. 16. In this matter, this Court is exercising power of revision and the power of revision is not available to appreciate or re-appreciate to have a contra-finding. 17. 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. No doubt, law regarding presumptions ## **Crl.R.P.No.905 of 2022** 10 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. ## **Crl.R.P.No.905 of 2022** **==> picture [12 x 9] intentionally omitted <==** **==> picture [427 x 45] intentionally omitted <==** ## _**P.Balasubramanian**_ . 19. 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 is perfectly justified in view of the discussions held above. 20. Law is clear on the point that when the complainant discharges the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the NI 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. 21. In this matter, the trial court as well as the appellate court correctly appreciated the ## **Crl.R.P.No.905 of 2022** 12 evidence and came to the conclusion that the evidence available established commission of offence punishable under Section 138 of NI Act by the accused and, accordingly, the accused was convicted. In fact, there is no reason to revisit the concurrent verdicts of conviction or the modified sentence. 22. In the result, this revision petition fails and is accordingly dismissed. 23. Considering the request of the learned counsel for the accused, two months' time from today is granted to the accused to appear before the trial court and pay fine/compensation. 24. The revision petitioner/accused is directed to appear before the trial court on 15.03.2023 to pay the compensation and to undergo the sentence. The execution of the sentence shall stand deferred till 14.03.2023. If the accused fails to surrender, the trial court is directed to execute the sentence without fail. ## **Crl.R.P.No.905 of 2022** **==> picture [13 x 9] intentionally omitted <==** Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww