Ushakumari v. Rajamma P. M. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 CRL.REV.PET NO. 813 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRL.A.NO.209/2020 OF ADDITIONAL DISTRICT & COURT OF SESSIONS JUDGE, MUVATTUPUZHA IN CC 75/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- II,** ## **PERUMBAVOOR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **USHAKUMARI AGED 56 YEARS, W/O SOMASEKHARA NAIR, ARAYA NIVAS, T2-4,11 NGO QUARTERS, ALUVA, ERNAKULAM DISTRICT, PIN - 682021 BY ADVS. C.D.JOHNY R.ANAS MUHAMMED SHAMNAD SARUN RAJAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 RAJAMMA P.M. AGED 43 YEARS, W/O MOHANAN, MALIKKALA HOUSE, MATTATHIL, ALLAPRA, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683556 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR PP-SRI.G.SUDHEER** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P No. 813 of 2022 2 ## **ORDER** ## **Dated this the 5th day of December, 2022** This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in C.C.No.75/2017 on the file of the Judicial First Class Magistrate Court-II, Perumbavoor and the appellant in Crl.A.No.209/2020 of the Court of Additional District and Sessions Judge, Muvattupuzha. The respondents herein are the original complainant as well as State of Kerala. 2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State. Notice to the complainant (1[st] respondent) stands dispensed with. 4. In this matter, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for Crl.R.P No. 813 of 2022 3 convenience), when cheque for Rs.3,00,000/- dated 23.03.2015 alleged to be issued by the accused for discharge of the said sum alleged to be borrowed during June, 2014, was returned unpaid for want of funds. 5. Since the accused failed to make the payment on demand, the complainant lodged a complaint under Section 142 of the N.I.Act. 6. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 examined and Exts.P1 to P5 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, DWs.1 and 2 were examined on the side of the defence. 7. Thereafter, the trial court appraised the contention and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.3,00,000/- and in default of payment of fine simple imprisonment for one month also was imposed. Fine was ordered to be paid as compensation to the Crl.R.P No. 813 of 2022 4 complainant. 8. Although, the accused challenged the conviction and sentence imposed by the trial court, before the Sessions Judge, the learned Additional Sessions Judge also confirmed the conviction while modifying the substantive sentence for a day till the raising of the Court. 9. While challenging the concurrent findings of conviction and modified sentence imposed by the Appellate Court, learned counsel for the accused reiterated the contentions raised before the trial court. 10. In this matter, insufficiency of demand notice issued by the complainant was challenged on the ground that, Ext.P4 returned with endorsement “unclaimed”. In fact, for DW1 the postmistress as well as DW2 the post woman were examined to prove that there was no service of notice as mandated under Section 138(b) of the N.I.Act. The trial court as well as the Appellate Court negated the said contention, on appreciation of evidence of PW1 as well as DWs 1 and 2. In fact, it is a settled law that, issuance of notice in the correct address alone would suffice the notice as mandated under Section 138(b) of the N.I.Act. Crl.R.P No. 813 of 2022 5 11. The law is settled in as much as the mode of issuance of notice under Section 138(b) of the N.I Act. The Apex Court considered the relevant provisions of the Evidence Act as well as General Clauses Act and Negotiable Instruments Act, 1881 in the decision reported in [2007 (2) KHC 932 : 2007 (2) KLD 148 : ILR 2007 (3) Ker. 203 : 2007 (6) SCC 555 : JT 2007 (7) SC 498 : 2007 (3) KLT 77 : 2007 (3) KLJ 81 : 2007 CriLJ 3214 : 2007 (3) SCC (Cri) 236 : 2007 (2) Guj LH 512 : 2008 (1) MPLJ 441 : 2008 (1) Mah LJ 44], _**C.C. Alavi Haji v. Palapetty Muhammed & anr.**_ and held as under: “Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. Crl.R.P No. 813 of 2022 6 This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement `refused' or `not available in the house' or `house locked' or `shop closed' or `addressee not in station', due service has to be presumed.” 12. Thus the law regarding issuance of notice is no more res-integra. Since Section 27 gives a presumption that service of notice has been effected when it is sent in correct address by registered post. If such a notice is returned for any reason without accepting the same, service of notice is implied. 13. In this matter it could be noticed that the notice was issued in the correct address as admitted by the accused and the same was returned with endorsement “unclaimed”. Hence there is sufficient notice in this matter. In view of the matter, the challenge in the matter of notice was rightly negatived by the courts below and the said aspect would do no help to the revision petitioner. Therefore, it has to be held that notice mandated under Section 138(b) of the N.I Act was rightly issued and the said contention cannot be accepted. Crl.R.P No. 813 of 2022 7 14. Apart from this, nothing argued to substantiate to interfere with the concurrent verdicts. In the grounds of revision also nothing stated to invoke the revisional jurisdiction available to this Court, pointing out any patent irregularity or illegality in the concurrent verdicts, without re-appreciation of evidence. 15. In this context, I am inclined to refer the power of revision available to this Court under Section 401 of Cr.P.C. r/w Section 397, which 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 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_ Crl.R.P No. 813 of 2022 8 _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. ...”_ 16. In another decision reported in [(2015) 3 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. Crl.R.P No. 813 of 2022 9 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 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.”_ 17. 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 Crl.R.P No. 813 of 2022 10 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 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. 18. In this case, the trial court as well as the Appellate Court given emphasis to the evidence of PW1 to hold that, the complainant discharged his initial burden in the matter of transaction and execution of cheque. Therefore, the courts below given benefit of presumptions in favour of the complainant. 19. Law regarding presumption is well settled. In Crl.R.P No. 813 of 2022 11 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 punishable 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 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_ Crl.R.P No. 813 of 2022 12 _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. 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.”_ 20. 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 Crl.R.P No. 813 of 2022 13 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 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.”_ 21. 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 Crl.R.P No. 813 of 2022 14 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 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_ Crl.R.P No. 813 of 2022 15 _(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.”_ 22. In fact, nothing substantiated in this revision petition to interfere with the concurrent findings of conviction as well as modified sentence of imprisonment to the least minimum possible, in any manner. **23.** In the result, this revision petition fails and is accordingly dismissed. 24. The learned counsel for the petitioner sought for six months time. Considering the fact that, the cheque is of the year 2015 and the amount as Rs.3,00,000/-, I am inclined to grant two months time to the accused from today to pay the fine and to undergo the sentence. 25. Therefore, the revision petitioner/accused is Crl.R.P No. 813 of 2022 16 directed to surrender before the trial court on 04.02.2023 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender, as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 03.02.2023. Registry is directed to forward a copy of this order to the trial court for information and compliance within seven days. **Sd/-** **A. BADHARUDEEN JUDGE** SK