Suresh Kumar v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944 ``` ``` CRL.REV.PET NO.866 OF 2022 ``` ``` AGAINST THE JUDGMENT IN CRA 167/2020 OF VI ADDITIONAL DISTRICT ``` ## **`COURT, ERNAKULAM`** ``` ST 1244/2017 OF JMFC, KAKKANAD (TEMPORARY) ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SURESH KUMAR AGED 51 YEARS S/O GOPALAN, PROPRIETOR, KAFED CASA, DEVANKULANGARA ROAD, BEHIND CHANGAMPUZHA PARK, OPPOSITE K.B.PLAZZA, EDAPPALLY,COCHIN , PIN - 682021 BY ADVS. VINOY VARGHESE KALLUMOOTTILL ROJA R. ``` ## **`RESPONDENTS/RESPONDENTS/STATE/COMPLAINANTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2K.M.RAFEEQ AGED 53 YEARS S/O P.K.KASSIM, FLAT NO.5D, THURUTTEPARAMBATH ROAD, VAZHAKKALA, KAKKANAD, KOCHI, PIN - 682030 SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 2 ``` ## **O R D E R** Dated this the 10[th] day of January, 2023 This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.', for short), by the revision petitioner, who is the accused in S.T.No.1244/2017 on the files of the Judicial First Class Magistrate Court, Kakkanad, arraying the State of Kerala as the 1[st] respondent and original complainant as the 2[nd] respondent. 2. The revision petitioner impugns judgment in S.T.No.1244/2017 dated 29.02.2020 on the file of the Judicial First Class Magistrate Court, Kakkanad and the judgment in Criminal Appeal No.167/2020 dated 30.11.20121 on the file of the Additional Sessions Court-VI, Ernakulam arising therefrom. 3. Heard the learned counsel for the revision petitioner, learned counsel for the 2[nd] respondent as well as ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 3 ``` the learned Public Prosecutor, on admission. 4. I shall refer the parties in this 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’s case before the trial court was that the accused had issued cheque dated 30.03.2017 to repay Rs.4,00,000/- due towards the complainant, which was allegedly borrowed by the accused from the complainant. On presentation of the cheque for collection, the same got dishonoured for want of funds. Though demand notice was issued and accepted by the accused, he did not pay the amount. On the said premise, the complainant filed complaint under the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act’) alleging that the accused committed offence punishable under Section 138 of the NI Act. 6. The trial court secured the presence of the accused for trial. During trial, PW1 was examined and Exts.P1 to P5 ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 4 ``` were marked on the side of the complainant. 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. But no evidence was adduced. 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 three months and to pay fine of Rs.4,00,000/- (Rupees four lakh only). In default of payment of fine, the accused shall undergo simple imprisonment for a further period of three months. The fine was ordered to be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. 9. The judgment in S.T.No.1244/2017 dated 29.02.2020 was challenged before the Additional Sessions Court-VI, Ernakulam. The learned Additional Sessions Judge modified the sentence while confirming the conviction as ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 5 ``` under: “While confirming the conviction, the sentence is reduced to simple imprisonment for one month and to pay a fine of Rs.2,00,000/- and in default to undergo simple imprisonment for a further period of one month.” 10. It is submitted by the learned counsel for the revision petitioner that the matter had been settled before the trial court and the accused agreed to pay Rs.3,25,000/-. Thereafter, Rs.2,00,000/- was paid though remaining amount could not be paid. The learned appellate court considered this matter and reduced the fine amount to the tune of Rs.2,00,000/-. It is submitted by the learned counsel for the revision petitioner further that though nothing to be argued on merits, in view of the factual events involved in this case as stated, the accused is satisfied with grant of two months time to pay the fine imposed by the appellate court. 11. In this matter, this Court is exercising power of revision and the power of revision is not available to ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 6 ``` appreciate or re-appreciate to have a contra-finding. 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. 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 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_ ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 7 ``` _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. ...”_ 13. 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 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_ ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 8 ``` _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 not interfere with decision in exercise of their revisional jurisdiction.”_ 14. 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 ``` 9 ``` ## **`CRL.REV.PET NO. 866 OF 2022`** 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. 15. In this matter, the courts below given benefit of presumptions under Sections 118 and 139 of NI Act in favour of the complainant, on the finding that the evidence of PW1 and Exts.P1 to P5 in the matter of transaction led to execution of the cheque is believable. 16. Regarding law on presumptions, 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 under Section 138 of the NI 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 impugned observations in Krishna Janardhan Bhat [2008 (1) KLT 425 (SC)] may not be_ ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 10 ``` _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 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_ ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 11 ``` _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.”_ 17. 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 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_ ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 12 ``` _of a debt or liability by adducing evidence.”_ 18. 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], _**Kalamani Tex (M/s.) & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the NI 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 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._ ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 13 ``` _…................_ _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 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.”_ 19. Thus, the 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 ``` CRL.REV.PET NO. 866 OF 2022 ``` ``` 14 ``` probabilities. 20. In this matter, the trial court as well as the appellate court correctly appreciated the 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 as well as the modified sentence. 21. Faced with the situation, the learned counsel for the accused sought for two months’ time to pay the amount. Since the fine amount would come to Rs.4 lakh and in consideration of the fact that the transaction was in the year 2017, I am inclined to grant two months’ time from today to pay the compensation. In the result, this revision petition fails and it is, accordingly, dismissed. However, the revision petitioner/the accused is given two months’ time from today to pay the fine/compensation and to ``` 15 ``` ## **`CRL.REV.PET NO. 866 OF 2022`** undergo the sentence. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 08.03.2023 to pay the fine/compensation or to undergo the default sentence. The execution of the sentence shall stand deferred till 07.03.2023. If the accused fails to surrender as directed, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. **Sd/-** ## **A. BADHARUDEEN** **JUDGE** nkr ``` 16 ``` ## **`CRL.REV.PET NO. 866 OF 2022`** The fine amount of Rs.’4 lakh’ referred in 21[st] paragraph of the final order dated 09.01.2023 is corrected as Rs.’2 Lakh’ as per order dated 14.02.2023 in Crl.M.A.No.1/2023 in Crl.R.P. 866/2022. Sd/DEPUTY REGISTRAR