T. D. Mohana Prasad v. State of Kerala and Santosh Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **Crl.Rev.Pet.No.261 OF 2020** **AGAINST THE JUDGMENT IN CRA 114/2016 OF ADDITIONAL SESSIONS COURT - VI, THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT IN CC 91/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV (MOBILE),THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **T.D.MOHANA PRASAD AGED 60 YEARS S/O.DAMODHARAN PILLAI, 'ROHINI', L.I.C.LANE, NEAR VIJAYA MOHINI MILLS, THIRUMALA.P.O., THIRUVANANTHAPURAM-695006.** **BY ADVS. SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. SHRI.GEORGE K.V. SHRI.PRAVEEN S.** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 SANTHOSH KUMAR, S/O.SADANANDAN, TC.27/1793, GOKULAM, ELANGAM NAGAR 160, THYCAUD.P.O., THIRUVANANTHAPURAM-695014.** **SRI.C.K.PRASAD PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.02.2020, THE COURT ON 02.03.2020 PASSED THE FOLLOWING:** Crl.R.P.No.261/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.261 of 2020 ----------------------------------------Dated this the 2[nd] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C.No.91/2014 on the file of the Court of the Judicial First Class Magistrate-IV, Thiruvananthapuram. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced the petitioner to imprisonment till the rising of the court and also directed him to pay an amount of Rs.2,50,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Crl.A.No.114/2016 challenging the Crl.R.P.No.261/2020 3 order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. The appellate court also ordered that the accused shall, in addition to the amount of compensation, pay Rs.20,000/- to the complainant by way of costs and in default of payment of the aforesaid amount, he shall undergo simple imprisonment for a period of thirty days. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The accused had borrowed an amount of Rs.2,50,000/- from the complainant. In discharge of that debt, the accused issued a cheque dated 21.01.2014 for Rs.2,50,000/-. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a notice to the accused Crl.R.P.No.261/2020 4 demanding payment of the amount of the cheque. The accused received the notice. He did not send any reply to the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and a witness was also examined on his side as PW2. Exts.P1 to P5 documents were also marked on his side. DW1 was examined on the side of the accused. 8. When examined as PW1, the complainant gave evidence that the accused borrowed an amount of Rs.2,50,000/from him on 22.12.2013. He also gave evidence that the accused issued Ext.P1 cheque dated 21.01.2014 for the aforesaid amount in discharge of the liability. 9. PW1 has given evidence that the accused himself wrote his name and the amount in the cheque and put his signature in it and that the accused gave the cheque to him. 10. The aforesaid evidence of PW1 proves execution of Ext.P1 cheque by the accused. Once execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is on the Crl.R.P.No.261/2020 5 accused to rebut the presumption. 11. The plea of the accused was that, in the year 2008, an amount of Rs.25,000/- was borrowed by him from the complainant for a friend of him by name Sukumar and at that time, he had given a signed blank cheque as security and that the complainant misused the aforesaid cheque and filed the case. 12. In order to prove the aforesaid plea, DW1 was examined by the accused. DW1 has no direct knowledge regarding the transaction between the complainant and the accused which allegedly took place in the year 2008. His evidence is only that when he saw the accused, the accused had told him that he was going to borrow amount for his friend and after some time, when he saw the accused he was informed by the accused that a cheque was needed as security for borrowing the amount. 13. The aforesaid evidence of DW1 does not, in any way, help the accused to prove the transaction which allegedly took place in the year 2008. As noticed earlier, DW1 has no direct knowledge regarding any such transaction. Moreover, the friend Crl.R.P.No.261/2020 6 of the accused by name Sukumar, for whom the amount was allegedly borrowed, was not examined on the side of the accused to prove the aforesaid transaction. 14. The accused had filed an application as Crl.M.P.No.73/2016 before the trial court to send the cheque for expert for obtaining opinion regarding the difference in age between the signature in the cheque and the other writings in it. The aforesaid application was rightly dismissed by the trial court observing that no technology was available to determine the age of writings. There are no scientific and technical facilities available in India for determining the age of handwritings and signatures in a document (See **Kuriakose v. Joseph : 2018 (1) KHC 48 : 2018 (1) KLT 356** ). 15. PW2 has given evidence in support of the evidence given by PW1. Learned counsel for the revision petitioner would contend that the evidence of PW2 is not at all reliable and trustworthy. Even if the evidence of PW2 is eschewed from evidence, there is nothing to suspect the evidence of the complainant, who was examined as PW1, regarding the Crl.R.P.No.261/2020 7 transaction and also issuing of the cheque by the accused. 16. There is primarily the evidence of the complainant to explain the circumstances under which he came into possession of the cheque, admittedly drawn on a cheque leaf issued to the accused by his bank to operate his account. On broad probabilities, there is no reason to doubt or suspect the statement on oath of the complainant. Contra evidence adduced by the accused lacks credibility. The fact that, the explanation offered by the accused as to how the cheque travelled from his possession to that of the complainant, is not convincing and probable would add strength to the acceptability and credibility of the evidence of the complainant. 17. A contention was raised by the accused in the trial court that there was no need for the accused to borrow amount from the complainant. It was contended that the accused was a person who was working as Additional Secretary and his wife was also employed. Mere employment in a high post does not mean that a person is financially sound. This plea overlooks the plea raised by the accused that, in order to give an amount of Crl.R.P.No.261/2020 8 Rs.25,000/- to a friend of him, he had to borrow it from another person on giving a cheque as security. 18. The financial capacity of the complainant to lend the amount was challenged by the accused during the trial. There is evidence to show that the complainant was conducting business and he had the ability to raise money. Moreover, in the absence of a probable and convincing plea raised by the accused with regard to the possession of his cheque, which admittedly bears his signature, with the complainant, it was not necessary for the complainant to prove the source of money or his financial capacity. 19. The complainant had sent the statutory notice to the accused demanding payment of the amount of the cheque. The accused has no case that he had not received the notice. He did not send any reply to the notice. If as a matter of fact, he had not borrowed the amount of Rs.2,50,000/- from the complainant and if he had not issued Ext.P1 cheque for Rs.2,50,000/- to the complainant in discharge of the liability, he would have definitely sent a reply to the lawyer notice sent to him by the complainant, Crl.R.P.No.261/2020 9 threatening legal action on default being committed by him in payment of the amount. The fact that the accused did not send any reply to the statutory notice, coupled with the other facts and circumstances of the case, leads to the inference that the case of the complainant is true. 20. In the aforesaid circumstances, I find no illegality or impropriety or perversity in the appreciation of evidence and the findings entered against the petitioner/accused by the courts below. 21. The courts below have appreciated the evidence and made concurrent findings. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or Crl.R.P.No.261/2020 10 untenable in law or is grossly erroneous or glaringly 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused. 22. The appellate court has imposed an amount of Rs.20,000/- as costs to be paid by the accused to the complainant and also ordered that, in default of payment of such amount, the accused shall undergo simple imprisonment for a period of thirty days. Awarding costs is a matter of discretion. The power under Section 359(1) Cr.P.C cannot be exercised by the court as a matter of routine. Considering the facts and circumstances of the case, I am of the view that this is not a fit case in which the appellate court should have exercised the Crl.R.P.No.261/2020 11 discretion to award costs to the complainant. The costs imposed on the accused by the appellate court is liable to be set aside even without notice to the first respondent/complainant. 23. Consequently, the revision petition is allowed in part. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. However, the order passed by the appellate court directing the petitioner/accused to pay Rs.20,000/- as costs to the complainant is set aside. The petitioner/accused is granted a period of four months from today to pay the amount of compensation of Rs.2,50,000/- (Rupees two lakhs fifty thousand only) to the complainant and to satisfy the trial court with regard to payment of such amount of compensation by him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr