Suryakala S. K. v. Gentlemen Chit Funds Co. (India) Pvt. Ltd. & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 CRL.REV.PET NO. 909 OF 2022 AGAINST THE JUDGMENT IN CRA 109/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, ALAPPUZHA ST 52/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, CHERTHALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** SURYAKALA S. K. AGED 61 YEARS, W/O.VIJAYAN P.S, SURYA BHAVAN, MUTTATHI PARAMBU P.O., CHERTHALA, PIN – 688527. BY ADVS. T.KABIL CHANDRAN R.ANJALI S.R.RATHEESH KUMAR ## **RESPONDENTS/RESPONDENT NO.1 & STATE/COMPLAINANT:** 1 GENTLEMAN CHIT FUNDS CO. (INDIA) PVT. LTD. SOUTH OF DEVI TEMPLE, CHERTHALA REPRESENTED BY THE LEGALLY AUTHORIZED AGENT AND POWER OF ATTORNEY HOLDER OF THE COMPLAINANT SALIM KUMAR A.P., AGED 45 YEARS, S/O. P.K. PADMANABHAN, AYYARAPPALITHARA HOUSE, THIRUNALLOOR P.O., PALLIPPURAM VILLAGE, CHERTHALA, PIN – 688557. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. PUBLIC PROSECUTOR SRI G.SUDHEER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20.01.2023, THE COURT ON ON 25.01.2023 DELIVERED THE FOLLOWING: Crl.R.P No.909/2022 2 ## _**A. BADHARUDEEN, J.**_ _================================ Crl.R.P No.909 of 2023_ ================================ _Dated this the 25[th] day of January, 2023_ ## _**O R D E R**_ This revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience) is at the instance of the sole accused in S.T.No.52/2019 on the files of the Judicial First Class Magistrate Court-III, Cherthala. 2. Challenge in this revision petition is the veracity of the judgment of the Judicial First Class Magistrate Court-III, Cherthala, in the above case dated 26.08.2020, modified by the Additional Sessions Judge-II, Alappuzha in Crl.Appeal No.109/2020 dated 10.08.2022. 3. I shall refer the parties in this Revision Petition as `complainant' and `accused' for convenience. The complainant Crl.R.P No.909/2022 3 lodged prosecution alleging commission of offence punishable under Section 138 of the N.I Act on the allegation that cheque dated 27.09.2016 for Rs.1,28,000/issued by the accused to discharge the liability of her son arose out of a chitty transaction with the complainant got dishonoured when the same was presented for collection. According to the complainant, the accused is the mother of one Krishnajith.S, who was a subscriber of chitty No.50/14 started on 28.06.2014 for sala of Rs.2 lakh. On 29.08.2014, the son of accused received Rs.1,44,000/- as chit prize and when the chit prize was advanced,the accused and her son had executed an agreement in favour of the complainant to repay the amount by installments without fail. But the son of the accused defaulted the repayment and accordingly the matter had been settled for Rs.1,28,000/-. Accordingly, the above cheque was issued. 4. The trial court secured the presence of the accused for trial. During trial, PW1 examined and Exts.P1 to P12 were Crl.R.P No.909/2022 4 marked on the side of the complainant. 5. The accused was questioned under Section 313(1)(b) of Cr.P.C. Defence evidence was adduced. Thereby DW1 and DW2 were examined and Ext.D1 was also marked. 6. The trial court given emphasis to the evidence of PW1 and Exts.P1 to P12 to hold that the complainant discharged his initial burden in the matter of executing Ext.P1 cheque. 7. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. Notice not ordered to the 1st respondent. 8. The trial court appraised the contentions finally and convicted and sentenced the accused as under: “ _The accused is sentenced to pay fine of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the offence punishable under Section 138 of N.I Act and in defaul tof payment of fine to undergo simple imprisonment for three months. If the fine amount is realized, the entire amount shall be given to the complainant under section 357(1) of the Criminal Procedure Code, 1973.”_ 9. The accused had preferred Crl.Appeal No.109/2020 Crl.R.P No.909/2022 5 before the Sessions Court, Alappuzha and the Additional Sessions Judge-II heard and dismissed the appeal as per judgment dated 10.08.2022 confirming the conviction and sentence imposed by the trial court. 10. While attempting to impeach the veracity of the concurrent finding of the conviction as well as the sentence imposed by the trial court as well as appellate court, the learned counsel for the accused reiterated the contentions raised before the courts below. 11. The contentions raised at the time of hearing and pointed out in the grounds of revision petition are that the courts below erred in correctly appreciating the evidence in the light of the defence taken by the accused. During cross examination, the complainant was not sure as to the exact time of execution of the **s** alleged cheque and, therefore, no anctity could be given to the complainant in the transaction. Further when the accused had challenged the execution of Ext.P1 cheque, the complainant ought to have proved the execution of cheque and passing of consideration by Crl.R.P No.909/2022 6 convincing the evidence. Mere admission of signature in a cheque could not be proved its execution. 12. Further it is argued by the learned counsel for the accused that the court below failed to appreciate the defence case put up by the accused. According to him, though on the date of alleged execution of Ext.P1 cheque the accused was working as Pharmacist in an Ayurvedic dispensary at Pattanakkad, and DW2, the Medical Officer of the said dispensary had given evidence to the effect that the accused was working at the office till 2 p.m., the courts below negatived the said contention on flimsy grounds. The case advanced by the complainant as could be read out from the evidence of PW2 is that the accused issued the cheque in between 12 noon and 3 p.m. But the courts below failed to appreciate the said evidence and accordingly the conviction as well as the sentence would require interference. 13. Going by the judgment of the trial court, the trial court appraised the evidence of PW1 and PW2, while rejecting the evidence of DW1, the accused herself as well as DW2, to the effect that as on 11.8.2016, the accused was on duty in an Crl.R.P No.909/2022 7 Ayurvedic dispensary in Pattanakkad, by raising plea of `alibi’. The trial court found that the signature in Ext.P1 cheque was not disputed. The dispute was with regard to the other entries and PW2 given evidence that on 11.08.2016, the accused reached the office of the complainant M/s. Gentleman Chit Funds Co. (India) Pvt. Ltd., Cherthala in between 12 noon and 3 p.m and handed over the cheque. The courts below believed the evidence of PW2 to the effect that the accused had issued Ext.P1 cheque at the office of the complainant at Cherthala. The trial court also appraised the contention raised by the accused, relying on the evidence of DW1 and DW2 and Ext.D1, issued by DW2 certifying that DW1 was on duty at the dispensary on 11.08.2016. The court below found that the evidence adduced by DW1 and DW2 and Ext.D1 would not be sufficient to disprove the evidence given by PW1 & PW2. Thereby conviction and sentence were imposed. It is relevant to note that the appellate court also considered the plea of alibi and found that during cross examination of DW1, it was stated that one can reach the office of Crl.R.P No.909/2022 8 the complainant from the Ayurvedic dispensary where DW1 (accused) was working, within 10-20 minutes. Therefore, the accused, who possibly left office at 2 p.m, could very well reach the office of the complainant before 3 p.m and had handed over the cheque. 14. It is pertinent to note that, when this Court perused Ext.D1, copy of which is placed in open Court, the same is not the copy of attendance register, but it is a letter written by PW2. Ext.D1 cannot substitute the original attendance register, where the duty, leave etc. will be shown in detail. That apart, when plea of alibi is raised, it should be proved, eschewing the possibility of the person who pleaded alibi at the place of occurrence and substantiating his presence where he or she was, as pleaded. To put it differently, the evidence must be one sufficient to hold that at the time of occurrence the person who pleaded `alibi’ was at the place, where he or she alleged to be, ruling out the possibility of that person’s presence in any other place. The evidence let in by DW1 or DW2 along with Ext.D1 did not establish the plea of `alibi'. In view of the above, the Crl.R.P No.909/2022 9 courts below correctly rejected the plea of `alibi’. Although the accused raised the other contentions as extracted herein above, the evidence available would show that the said contentions will not sustain. 15. Acting on the evidence of PW1 and PW2, the courts below found that the complainant discharged his initial burden in the matter of execution of Ext.P1 cheque and thereby given benefit of presumptions in favour of the complainant. 16. 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 Crl.R.P No.909/2022 10 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. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], _**Kalamani Tex (M/s.) & anr. v. P.Balasubramanian**_ . 17. It is relevant to refer a latest decision of the Apex Court reported in [2022 (5) KHC 560 (SC)], _**Oriental Bank of Commerce v. Prabodh Kumar Tewari**_ , wherein it has been held that, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defence whether cheque was issued towards payment of a debt or in discharge of a Crl.R.P No.909/2022 11 liability. 18. 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. 19. It appears that the courts below correctly appreciated the evidence and given the benefits of twin presumptions in favour of the complainant. In fact, the evidence adduced by the accused raising plea of alibi found to be not established ruling out her presence at the office of the complainant during the relevant time of transaction. Therefore, the conviction does not require any interference at the hands of this Court by exercising the power of revision. In so far as the sentence is concerned, the Crl.R.P No.909/2022 12 learned Magistrate was too lenient to avoid the substantive sentence and imposed default sentence of 3 months on failure to pay the fine. Therefore, sentence also does not require any interference. 20. In the result, this Revision Petition stands dismissed. 21. In the above circumstances, the learned counsel for the revision petitioner/accused sought three month's time to pay the fine. Considering the request of the learned counsel for the revision petitioner and taking note of the transaction of the year 2014, involving Rs.1,28,000/- one month's time from today is granted to the accused to pay the fine amount. 22. Therefore, the revision petitioner is directed to appear before the trial court on or before 25/02/2023 to pay the fine/ . compensation or to undergo the default sentence 23. In default to do so, the trial court is directed to execute the sentence as per law without fail. The execution of the sentence shall stand deferred till 24.02.2023. Crl.R.P No.909/2022 13 Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_