T Ruksana v. T Musthafa

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA,** ## **1944** ## **CRL.REV.PET NO. 675 OF 2022** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.185/2014 OF SESSIONS COURT, THALASSERY DATED 30.07.2022 ST 2873/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **THALASSERY** ## **PETITIONER/S:** **T RUKSANA AGED 42 YEARS W/O HAMZA, KUNIL RASHID MANZIL, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, KUTHUPARAMBA.P.O, PIN - 670643 BY ADVS. M.BAIJU NOEL T.S.LIKHITHA SHINTO SABASTIAN** ## **RESPONDENT/S:** **1 T MUSTHAFA AGED 46 YEARS S/O.LATE KUNHAMMAD, BYTHUL RAZA THAYYULLATHIL, PATHIRIYAD AMSOM, DESOM, MAMBARAM POST, PA HOLDER P.P. SUBAIR, S/O. MOIDU, AGED 46 YEARS, THAYYULLATHIL HOUSE, THALASSERY, PIN – 670622.** **BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2022, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:** **CRL.R.P. NO.675 OF 2022** -:2:- ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.R.P.No.675 of 2022** **-------------------------------------------------------Dated this the 27[th] day of October, 2022** ## **O R D E R** This Revision Petition has been preferred under Sections 397 and 401 of the Code of Criminal Procedure(hereinafter will be referred as Cr.P.C. for convenience) by the sole accused in ST No.2873 of 2012 on the file of the Judicial First Class Magistrate Court, Thalassery arraying the original complainant in the above case as respondent. 2. Heard the learned counsel for the revision petitioner/the accused on admission. 3. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. **CRL.R.P. NO.675 OF 2022** -:3:- 4. Summary of the case advanced before the trial court is as under: The complainant initiated prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience), when cheque for Rs.25,00,000/- dated 10.05.2012 issued by the accused in favour of the complainant as part of settlement in the matter of payment of advance sale consideration arising out of an agreement dated 10.08.2011, was dishonoured. According to the Complainant, though the cheque was issued by the accused on the assurance of encashment on presentation for collection, when the cheque was presented, the same got dishonoured for want of funds. Thereafter, the complainant issued legal notice to the accused demanding the amount and intimating the dishonour of the cheque. However, no **CRL.R.P. NO.675 OF 2022** -:4:- amount paid. 5. The trial court went on trial. The complainant got examined as PW1 and Exts.P1 to P12 marked on the side of the complainant. 6. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 7. The trial court appreciated the evidence and held that the complainant successfully established the transaction led to execution of Ext.P1 cheque and thereby, given benefit of presumptions in favour of the complainant. 8. Accordingly, the trial court convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced to pay fine of Rs.25,00,000/and in default of payment of fine amount, simple **CRL.R.P. NO.675 OF 2022** -:5:- imprisonment for one year was imposed. 9. Aggrieved by the above conviction and sentence, the accused filed appeal before the Sessions Court, Thalassery. The learned Additional Sessions Judge also confirmed the conviction, while modifying the sentence in the matter of default sentence for a period of 60 days and also payment of Rs.1,00,000/- towards cost to meet the expenses incurred by him under Section 359(2) of Cr.P.C. 10. While assailing the concurrent verdicts, the learned counsel for the accused argued that mere admission of the signature in the cheque would not suffice the requirement of proof of the transaction led to execution of cheque and in this case, the complainant miserably failed to prove the transaction and execution of Ext.P1 cheque. Further, it is contended that the courts below went wrong in holding that the accused **CRL.R.P. NO.675 OF 2022** -:6:- failed to adduce the evidence to rebut the presumptions. 11. In fact, the contention raised by the accused is confined to proof of transaction led to execution of Ext.P1 and the same is a matter of evidence. The trial court as well as the appellate court believed the version of PW1 to hold that Ext.P1 cheque was issued towards repayment of advance sale consideration paid by the complainant on the basis of an agreement for sale dated 10.08.2011, since the evidence of PW1 in this regard was not shaken during cross-examination in any manner. 12. It is true that a contention was raised by the accused before the courts below on the assertion that the evidence adduced by PW1 and Ext.P1 are insufficient to prove the transaction. But the courts below negatived the said contention relying on the **CRL.R.P. NO.675 OF 2022** -:7:- evidence of PW1 and Exts. P1 to P12. Another contention raised by the accused before the trial court was that the property offered to be sold, as per the agreement, was not the property of the accused and thereafter, the complainant obtained the cheque with assistance of police. In fact, these are all matters of evidence. The trial court as well as the appellate court found that no evidence available to substantiate the contentions raised by the accused in any manner. 13. This Court, while exercising the power of revision, has no power to appreciate or re-appreciate the evidence. 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** **CRL.R.P. NO.675 OF 2022** -:8:- **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 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. ...”_ 14. In another decision reported in [(2015) 3 **CRL.R.P. NO.675 OF 2022** -:9:- 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 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_ **CRL.R.P. NO.675 OF 2022** -:10:- _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.”_ 15. 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 otherwise, if there is **CRL.R.P. NO.675 OF 2022** -:11:- 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. 16. It is the settled law that, when the issuance of cheque for the consideration alleged for the same is established by the complainant, the complainant would get benefit of twin presumptions. Law regarding presumptions is also settled as well. 17. In this connection, 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 N.I 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_ **CRL.R.P. NO.675 OF 2022** -:12:- _Janardhan Bhat [2008 (1) KLT 425 (SC)] may not be 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._ **CRL.R.P. NO.675 OF 2022** -:13:- _Accused can rely on the materials submitted by the 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.”_ 18. 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_ **CRL.R.P. NO.675 OF 2022** -:14:- _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 of a debt or liability by adducing evidence.”_ 19. 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], _**M/S Kalamani Tex & anr. v. P.Balasubramanian**_ the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I 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_ **CRL.R.P. NO.675 OF 2022** -:15:- _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._ _…................_ _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.”_ 20. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, **CRL.R.P. NO.675 OF 2022** -:16:- the presumption 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. 21. In this matter, it is to be noted that nothing argued to interfere with the concurrent findings by exercising power of revision. To the contrary, it appears that the courts below rightly entered into conviction and sentence. Therefore, I am not inclined to interfere in the conviction and sentence in any manner. 22. Faced with the situation, the learned counsel for the accused sought for six months time to pay the amount. Considering the fine amount would come to Rs.25,00,000/- and in consideration of the fact that the transaction was in the year 2011, I am inclined to grant four months time from today to pay the **CRL.R.P. NO.675 OF 2022** -:17:- compensation. 23. In the result, this revision petition fails and it is, accordingly, dismissed. However, the revision petitioner/the accused is given time for four months from today to pay the compensation or to undergo the default sentence. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 26.02.2023 to pay the compensation or to undergo the default sentence. The execution of the sentence shall stand deferred till 25.02.2023. On failure to do so, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the court below concerned for information. Sd/- **A. BADHARUDEEN JUDGE** rkj