Ummar Jisam v. P. Kuttayi & State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 ``` ## `CRL.REV.PET NO. 2983 OF 2011` ``` AGAINST THE JUDGMENT DATED 30.09.2011 PASSED BY THE HOUNOURABLE FIRST ADDITIONAL SESSIONS JUDGE, KOZHIKODE IN CRA 229/2011, MODIFYING THE SENTENCE PASSED BY THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT- V, KOZHIKODE IN ST 1700/2007 DATED 16.03.2011 ``` ## `REVISION PETITIONER/APPELLANT/ACCUSED:` ``` 1UMMAR JISAM S/O UMMAR, AGED 37 YEARS, 12/1217, PALLIPARAMBIL, PANAYAPALLI,, COCHIN-2 BY ADVS. SRI.A.BALAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.A.RAJAGOPALAN ``` ## `RESPONDENTS/RESPONDENTS/COMPLAINANT&STATE:` ``` 1P.KUTTAYI AGED 71 YEARS S/O PERAVAN, PINNANATH HOUSE P.O, KADALUNDY, KOZHIKKODE. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADVS. SMT SEETHA S, SR.PP SMT.V.B.SANTHINI ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 2 ``` C. S. DIAS, J. `-------------------------` Crl.Rev.Pet. No.2983 of 2011 `-------------------------` Dated this the 26[th] day of September, 2023 ## ORDER The revision petition is filed assailing the judgments passed in Crl.A. No.229/2011 and S.T. No.1700/2007 by the Court of Session, Kozhikode Division (Appellate Court) and the Court of Judicial Magistrate of the First Class-V, Kozhikode (Trial Court), respectively, holding the revision petitioner guilty, and convicting and sentencing him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, ‘N.I. Act’). The revision petitioner was the accused and the first respondent was the complainant before the Trial Court. The parties are, for the sake of ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 3 ``` convenience, referred to as per the status before the Trial Court. ## F acts in brief 2. The complainant had filed the above complaint before the Trial Court alleging that the accused had borrowed an amount of Rs.75,000/- from him on 10.12.2006, and promising to repay the said amount within one month. In discharge of the said liability, the accused had issued Ext.P1 cheque. However, on presentation of the cheque to the bank for collection, the same was dishonoured by Ext.P2 memorandum for the reason “account closed”. Although the complainant had issued Ext.P3 statutory lawyer notice and the same being received by the accused, he refused to pay the demanded amount. Hence, he committed the above offence. ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 4 ``` ## Trial: 3. The accused pleaded not guilty to the substances of accusation read over to him. In the trial, the complainant was examined as PW1 and Exts.P1 to P6 were marked in evidence. The accused denied the incriminating circumstances put to him in the questioning under Section 313 of the Code of Criminal Procedure. The accused let in defence evidence as DW1. ## Trial Court Judgment: 4. The Trial Court, after analysing the materials on record, convicted the accused for the offence under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of three months and to pay Rs.75,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C., and in default of the payment of the ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 5 ``` compensation amount, the accused to undergo simple imprisonment for a further period of two months. 5. Aggrieved by the said judgment, the accused preferred Crl.A. No.229/2011 before the Appellate Court. ## Appellate Court Judgment: 6. The Appellate Court, after reappreciating the materials on record, by the impugned judgment, confirmed the conviction; but modified the sentence by sentencing the accused to pay a fine of Rs.80,000/- and in default of payment, to undergo simple imprisonment for a period of two months. 7. It is questioning the above judgments, the present revision petition is filed. 8. Heard; Sri. A. Balagopalan, the learned counsel appearing for the revision petitioner; ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 6 ``` Smt.V.B.Santhini, the learned counsel appearing for the first respondent and Smt. Seetha S., the learned Public Prosecutor appearing for the second respondent. 9. Is there any illegality, impropriety or irregularity in the judgments of the courts below. 10. Before I delve into the legality and correctness of the impugned judgments, it is to be remembered that the scope of the revisional jurisdiction under Sections 397 to 401 of the Cr.P.C. is very limited. 11. It is trite, that the revisional power of this Court is to be sparingly exercised and in exceptional rarity. The power is more in the nature of a supervisory jurisdiction, to correct the miscarriage of justice, if any found. The revisional cannot be with power equated ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 7 ``` Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless there is a patent illegality, which is shocking to the conscience of the Court. 12. In Ramrao Chavan vs Sanjaysinh Dattatray Gulabrao Phalke & Anr [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and powers under Sections 397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 8 ``` 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 CrPC 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 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 courts may not interfere with decision in exercise of their revisional jurisdiction.” 13. Coming back to the facts of the instant case. 14. The complainant’s case was that the accused had borrowed an amount of Rs.75,000/-, on 10.12.2006, and in discharge of the said liability, issued Ext.P1 cheque. The said cheque on presentation for collection got dishonoured and the accused refused to pay demanded amount despite receipt of Ext.P3 statutory lawyer notice. ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 9 ``` 15. On the contrary, the accused under Section 313 questioning and in his defence evidence took up a contention that he had no transaction with the complainant; instead he had handed over Ext.P1 to one cheque ‘Sakkeer’, as security, with whom he had a chitty transaction. 16. On the revision petitioner admitting the execution and issuance of Ext.P1 cheque, the reverse onus of proof had fallen on his shoulders to establish that Ext.P1 cheque was not issued towards the legally enforceable debt. 17. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Secs.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 ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 10 ``` 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.” 18. A three-Judge Bench of the Hon’ble Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325], while dealing with Sec.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 ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 11 ``` 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 conceivable that in some cases the accused may not need to adduce evidence of his / her own. 15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 12 ``` accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under S.138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant - accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction - related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction - expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.” ## 19. Recently, a three-Judge Bench of the ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 13 ``` Hon’ble Supreme Court in Kalamani Tex and Anr vs. 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 declare 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).” 20. Admittedly, the accused does not deny the execution of Ext.P1 cheque. He has also not sent a reply notice to Ext.P3 statutory lawyer notice. It was in his defence evidence that he had issued Ext.P1 cheque to one Sakkeer as ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 14 ``` security in connection with a chitty transaction with the said person. 21. The courts below, after appreciating the materials on record, found the stand taken by the revision petitioner/accused to be highly improbable, especially since the accused did not take any steps to examine Sakkeer, who is the material witness. 22. In case Rangappa’s (supra), it is held that the reverse onus of proof is on the accused to rebut the statutory presumption under Section 139 of the N.I. Act by raising a probable defence. If the accused fails to reply to the statutory lawyer notice, then an inference has to be drawn that there is merit in the complainant’s version. 23. In Bir Singh v. Mukesh Kumar [2019 (4) SCC 197] , it is observed that even if a blank ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 15 ``` cheque is voluntarily signed and handed over by the accused to the complainant for some payment, the same would attract the presumption under Section 139 of the N.I. Act. 24. In the case at hand, other than for the bald assertion that Ext.P1 cheque was issued to Sakkeer and not to the complainant, there is nothing to rebut the presumption under Section 139 of the N.I. Act. Thus, the courts below have concluded that Ext.P1 cheque was issued in discharge of a legally enforceable debt. I do not find any contra evidence let in by the revision petitioner to take a contrary view. 25. An upshot of the above discussion leads me to the irresistible conclusion that there is no illegality or impropriety in the concurrent findings of the courts below holding that the revision petitioner had issued Ext.P1 ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 16 ``` cheque in discharge of a legally enforceable debt. Accordingly, I confirm the findings of the courts below in the impugned judgments. 26. At the said point of time, the learned counsel appearing for the revision petitioner prayed that the revision petitioner may be granted at least two months’ time to pay the fine amount. 27. Taking into account the fact that the revision petition is of the year 2011 and this Court had suspended the execution of the sentence on 16.11.2011, subject to the condition that the revision petitioner deposits an amount of Rs.20,000/- before the Trial Court within a period of three weeks, I find the above submission to be reasonable and justifiable. Hence, I am inclined to allow the said prayer. 28. In the result, ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 17 ``` (i) The revision petition is dismissed. (ii) The conviction imposed by the courts below and the sentence imposed by the Appellate Court are confirmed. (iii) The revision petitioner/accused is directed to appear before the Trial Court on or before 27.11.2023 to pay the fine amount and in default to undergo the default sentence. (iv) Needless to mention, if the revision petitioner has already deposited any amount pursuant to the orders of this Court, only the balance amount need be deposited. (v) In case of failure of revision petitioner to appear before the Trial Court as ordered above to pay the fine amount, the Trial Court is directed to execute the sentence, in accordance with law. (vi) The execution of the sentence shall ``` Crl.Rev.Pet. No.2983 of 2011 ``` ``` 18 ``` stand deferred till 27.11.2023. (vii) The Registry is directed to forward a of this order to the trial court for copy compliance. Sd/- C. S. DIAS JUDGE SKP/26-09