Thampi Varghese v. Jiby Sara Joseph and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 11[TH] DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CRL.REV.PET NO. 2884 OF 2011 ``` ``` AGAINST THE JUDGMENT CC 1278/2006 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM ``` ## **`CRA 313/2010 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` THAMPI VARGHESE, C/O.JACOB MATHEW ``` ``` AGED 52 YEARS, KOCHUPARAMBIL HOUSE, FATHER MANUEL ROAD, CHETTATH LANE,KATHRIKKADAVU, COCHIN. ``` ``` BY ADV SRI.T.N.HAREENDRAN ``` ## **`RESPONDENT/COMPLAINANT & STATE:`** ``` 1JIBY SARA JOSEPH, 16C LINK HEIGHTS PANAMPILLY NAGAR, ERNAKULAM-36 ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SR.P.P.SMT.PUSHPALATHA M.K. ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P. No.2884 of 2011 ## **C. S. DIAS, J.** **------------------------Crl.R.P. No.2884 of 2011 ------------------------Dated this the 11[th] day of October, 2023** ## **ORDER** The revision petitioner calls in question the correctness and legality of the judgment in Crl.A No.313/2010 passed by the Court of the Additional Sessions Judge (Adhoc-I), Ernakulam (Appellate Court), confirming the judgment in CC No.1278/2006 passed by the Court of the Additional Chief Judicial Magistrate (EO), Ernakulam (Trial Court), convicting and sentencing the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act (for brevity, “N.I.Act”). The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. For the sake of convenience, the parties are referred to as per their status in the complaint. 3 Crl.R.P. No.2884 of 2011 ## **Factual matrix** 2. The complainant filed the complaint against the accused on the allegation that he was a close relative of the complainant’s older sister. The accused had borrowed a sum of Rs.50,000/- from the complainant and issued Ext P1 cheque dated 31.8.2004. The cheque, on presentation to the bank for collection, got dishonoured by Ext.P2 memorandum due to ‘insufficient funds’ in the bank account of the accused. Although the complainant had issued Ext P4 statutory lawyer notice, the accused did not pay the demanded amount. Hence, the accused committed the above offence. 3. The learned Magistrate took cognizance of the offence and the accused entered appearance. He denied the accusations that were read over to him. In the Trial, the complainant and a witness were examined as PWs 1 and 2 4 Crl.R.P. No.2884 of 2011 and Exts.P1 to P7 were marked in evidence. The accused denied the incriminating circumstances put against him in the statement under Section 313 of the Code of Criminal Procedure ( in short, Cr.P.C’). The accused did not let in any defence evidence. ## **Trial Court Judgment** 4. The learned Magistrate, after appreciating the materials on record, convicted the accused for the offence under Sec.138 of the N.I Act and sentenced him to undergo simple imprisonment for a period of three months and pay a compensation of Rs.50,000/- to the complainant under Sec.357(3) of the Cr.P.C and in default to undergo simple imprisonment for a further period of three months. 5. Aggrieved by the said judgment, the accused preferred Crl.A No.313/2010 before the Appellate Court. 5 Crl.R.P. No.2884 of 2011 ## **Appellate Court judgment** 6. The Appellate Court, after re-appreciating the materials on record, confirmed the conviction, but reduced the substantive sentence to undergo simple imprisonment till the rising of Court and retained the compensation part. 7. It is assailing the concurrent judgments passed by the court below, the present revision petition is filed. 8. When the revision petition came up for admission, this Court refused to admit the revision petition and ordered notice to the complainant. Even after a lapse of a decade service of notice is not completed on the first respondent/complainant. Hence, this Court has taken up the revision petition for admission. 9. The revisional jurisdiction of this Court under Sections 397 to 401 of the Code is to be sparingly exercised and only in cases of exceptional rarity. The power is more in 6 Crl.R.P. No.2884 of 2011 the nature of a supervisory jurisdiction, to correct patent errors, manifest illegality and when there is misreading of records. 10. The case of the first respondent/complainant is that the revision petitioner/accused had borrowed a sum of Rs.50,000/- from the complainant and issued Ext P1 cheque, which got dishonoured on presentation to the bank due to insufficienct funds in the account of the accused. Although a statutory lawyer notice was issued, the accused failed to pay the amount. 11. The accused had issued Ext P6 reply notice to the complainant stating that Ext P1 cheque was not issued towards a legally enforceable debt, but was misused by the complainant to file a false case. 7 Crl.R.P. No.2884 of 2011 12. In the statement of the accused recorded under Section 313 of the Code, the accused denied all the incriminating circumstances made against him. 13. The courts below, after appreciating the materials on record, concurrently concluded that Ext P1 cheque was issued towards a legally enforceable debt. 14. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Sections 118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: _“118. Presumptions as to negotiable instruments – Until the contrary is proved, the following presumptions shall be made;-_ _(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted,indorsed, negotiated or transferred, was accepted,indorsed, negotiated or transferred for consideration;_ _139. Presumption in favour of holder. —It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability”._ 8 Crl.R.P. No.2884 of 2011 15. A three-Judge Bench of the Hon’ble Supreme Court in _**Rangappa v. Sri.Mohan**_ [2010 KHC 4325], while dealing with Section 139 of the N.I. Act has conceptualised the doctrine of ‘reverse onus’, by holding thus: “ 18. In light of these extracts, we are in agreement with the respondent - claimant that 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 (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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 specifies 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. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is 9 Crl.R.P. No.2884 of 2011 conceivable that in some cases the accused may not need to adduce evidence of his / her own.” 16. Recently, a three-Judge Bench of the Hon’ble Supreme Court in _**Kalamani Tex and Anr v. P. Balasubramanian**_ [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declares the law on the point in the following terms: “14. 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 Section 118 and Section 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. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243).” 10 Crl.R.P. No.2884 of 2011 17. Indisputably, the revision petitioner/accused has admitted the execution of Ext P1 cheque. His case is that there was no consideration for the said cheque, which was given for the purpose of getting the call sheet of an actress. However, the actress refused to act in low budget films. Therefore, there was no consideration for the cheque. But, the cheque was misused. 18. In **Rangappa** (supra), the Hon'ble Supreme Court has held that once a cheque is dishonoured, the reverse onus of proof is cast on the accused under Section 139 of the N.I. Act. 19. Similarly, in **Kalamani Tex** (supra), the Hon'ble Supreme Court has held that even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment, the statutory presumption under Section 139 of the N.I. Act cannot be obliterated unless a probable defence is set up. 11 Crl.R.P. No.2884 of 2011 20. In the case at hand, other than for the bald assertions of the revision petitioner/accused in Ext P6 reply notice, no material is produced to substantiate the defence. Hence, this Court is of the definite view that the revision petitioner has failed to rebut the reverse onus of proof cast on him under Section 139 of the N.I. Act. The courts below have rightly concluded that Ext P1 cheque was issued towards a legally enforceable debt and that the accused has committed the offence under Section 138 of the N.I. Act. I do not find any error, illegality or impropriety in the impugned judgments passed by the courts below. The revision petition is devoid of any merits and is only liable to be dismissed at the threshold. 21. Consequently, I dismiss the revision petition at the stage of admission. 12 ## Crl.R.P. No.2884 of 2011 The Registry is directed to forward a copy of the order to the Trial Court for execution of sentence imposed on the revision petitioner/accused. sks/11.10.23 Sd/- C.S.DIAS, JUDGE