V. Kumar v. M. Robin and State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 2081 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 21.01.2011 IN CRA 196/2009 OF ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK COURT-I, THIRUVANANTHAPURAM ``` ``` ST 1756/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, NEYYATTINKARA ``` ## `REVISION PETITIONER/APPELLANT/ACCUSED:` ``` V.KUMAR, V/O. VAIRAVAN ACHARI, RETNA BHAVAN, NALACHI VILAKOM, VIZHINJAM STREET,VIZHINJAM.P.O. ``` ``` BY ADV SRI.VADAKARA V.V.N.MENON ``` ## `RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:` ``` 1M.ROBIN, S/O. ANTONY MATHEW, KALLINGAL VILAKAM VEEDU,PERAVILAKOM, KOTTAPURAM.P.O, VIZHINJAM. ``` ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SRI.SHAJIN S.HAMEED ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.No.2081/2011 ``` ``` -:2:- ``` Dated this the 4[th] day of October,2023 ## **O R D E R** The revision petitioner calls in question the legality and propriety of the judgments of the Court of the Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram (Appellate Court), in Crl.A.No.196/2009 and the Court of the Judicial First Class Magistrate-V, Neyyattinkara(Trial Court), in S.T.No.1756/2007, convicting and sentencing the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1988 (for brevity, ‘N.I. Act’). The revision petitioner was the accused and the complainant before the Trial Court. ## **Relevant Factual Matrix:** 2. The first respondent had filed the complaint before the Trial Court, alleging that the revision petitioner had borrowed an amount of Rs.5,00,000/from him and in discharge of the said liability, had ``` Crl.R.P.No.2081/2011 ``` ``` -:3:- ``` issued Ext P1 cheque. The cheque on presentation to the bank for collection got dishonoured by Ext P2 memorandum due to ‘insufficient funds’ in the account of the revision petitioner. Although the first respondent had issued Ext P3 statutory notice and the revision petitioner receiving the same, he failed to pay the demanded amount. Hence, he committed the above offence. ## **Trial** 3. The revision petitioner pleaded not guilty to the substance of accusation read over to him. In the trial, the first respondent was examined as PW1 and Exts P1 to P6 were marked in evidence through him. The revision petitioner had denied the incriminating circumstances put to him in the questioning under Section 313 of the Code of Criminal Procedure, 1973(Cr.P.C). The revision petitioner got himself examined as DW 1 and marked Exts D1 to D1(b). ``` Crl.R.P.No.2081/2011 ``` ``` -:4:- ``` ## **Trial Court judgment:** 4. The Trial Court, after analysing the materials on record, convicted the revision petitioner for the offence under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,05,000/-, and in default of payment of fine to undergo simple imprisonment for a further period of two months. If the fine amount was realised, the same to be paid to the first respondent as compensation under Section 357(1) of the Cr.P.C. 5. Aggrieved by the said judgment, the revision petitioner filed Criminal Appeal No.196/2009 before the Appellate Court. ## **Appellate Court judgment:** 6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, confirmed the conviction and sentence passed by the ``` Crl.R.P.No.2081/2011 ``` ``` -:5:- ``` Trial Court. 7. It is assailing the concurrent findings in the judgments passed by the courts below, the revision petition is filed. 8. Heard; Sri. Vadakara V.V.N. Menon, the learned counsel appearing for the revision petitioner; Sri. Sajin S. Hameed, the learned Counsel appearing for the first respondent and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the second respondent – State. 9. Is there any illegality, impropriety or irregularity in the judgments of the courts below. 10. It is well settled that the revisional jurisdiction of this Court is to be sparingly exercised and only in cases of exceptional rarity. The power is more in the nature of a supervisory jurisdiction, to correct patent errors, manifest illegality and when there is total miscarriage of justice. Merely because a ``` Crl.R.P.No.2081/2011 ``` ``` -:6:- ``` different view is possible, the revisional Court shall not substitute the views of the Trial/Appellate Court, unless and until this Court is convinced that the records have been misread. 11. In **Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and purport of the 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 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 ``` Crl.R.P.No.2081/2011 ``` ``` -:7:- ``` 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.” 12. The first respondent’s case was that the revision petitioner had borrowed an amount of Rs.5,00,000/- from him and issued Ext P1 cheque towards the legally enforceable debt. The cheque on presentation to the bank got dishonoured due to ‘insufficient funds’ in the account of the revision petitioner and despite, receipt of Ext P3 statutory lawyer notice, the revision petitioner failed to pay the demanded amount. The revision petitioner got himself examined as DW1 and raised a defence that he had not ``` Crl.R.P.No.2081/2011 ``` ``` -:8:- ``` executed the cheque in favour of the first respondent. While giving evidence as DW1, he testified that he had lodged a complaint before the Police regarding the missing of the cheque. 13. 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”. ## 14. 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 ``` Crl.R.P.No.2081/2011 ``` ``` -:9:- ``` ## 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 ``` Crl.R.P.No.2081/2011 ``` ``` -:10:- ``` 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 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”. 15. Recently, a three-Judge Bench of the Hon’ble Supreme Court in **Kalamani Tex and Anr v. P.** ``` Crl.R.P.No.2081/2011 ``` ``` -:11:- ``` **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).” 16. The defence of the revision petitioner that he had not drawn Ext P1 cheque and had in fact lodged a complaint to the police regarding the missing of the cheque. Although he was examined as DW1, he did not produce any material to prove that he had lodged the complaint with the Police. In his cross-examination, he did not even remember the date the cheque went missing. 17. The courts below, on a comparison of Ext P1 ``` Crl.R.P.No.2081/2011 ``` ``` -:12:- ``` cheque and Ext P6 Account Opening Form of the bank account of the revision petitioner under Section 73 of the Indian Evidence Act,1872, concluded that the revision petitioner had executed Ext P1 cheque. Accordingly, the courts below concurrently found the revision petitioner to have committed the offence under Section 138 of the N.I. Act. 18. In **Rangappa** (supra), the Hon'ble Supreme Court has held that, once a cheque is dishonoured, a reverse onus of proof is cast on the accused under Section 139 of the N.I. Act. If the accused fails to issue a reply to the statutory lawyer notice issued by the complainant under Section 138 of the N.I. Act, then an inference is to be drawn in favour of the complainant. 19. In **Kalamani Tex** (supra), the Honourable Supreme Court has held that, even if a blank cheque is voluntarily signed and handed over by the accused towards some payment, the statutory presumption ``` Crl.R.P.No.2081/2011 ``` ``` -:13:- ``` under Section 139 of the N.I. Act cannot be obliterated, unless the accused raises a probable defence. 20. On an appreciation of the materials placed on record and the law laid down by the Hon'ble Supreme Court, I do not find any error, illegality or impropriety in the concurrent findings of the courts below, to take a contrary view that the revision petitioner has not committed the offence under Section 138 of the N.I.Act. Thus, I confirm the concurrent finding of conviction of the courts below on the accused. 21. At the said point of time, the learned counsel appearing for the revision petitioner argued that, it is settled law that an offence under Section 138 of the N.I. Act is more civil in nature. Therefore, this Court may modify the substantive sentence of six months imposed by the courts below and reduce it to one day (till the rising of the court), which would meet the ends of justice. ``` Crl.R.P.No.2081/2011 ``` ``` -:14:- ``` 22. In **Kalamani Tex** (supra), the Hon'ble Supreme Court has held that Section 138 of the N.I. Act is more civil in nature. The intention of the legislature is to compel the drawer of the cheque to pay the cheque amount. Therefore, the substantive sentence can be reduced till the rising of the court and the compensation can be enhanced. Thus, I am inclined to modify the substantive sentence and enhance the fine amount. 23. The learned counsel appearing for the revision petitioner also prayed that the revision petitioner may be granted at least two months’ time to pay the fine amount. As the revision petition is of the year 2011 and the execution of the sentence was suspended, I find the above submission to be reasonable and justifiable. In the result; (i) The revision petition is allowed in part; ``` Crl.R.P.No.2081/2011 ``` ``` -:15:- ``` - (ii) The conviction imposed by the courts below is confirmed; - (iii) The sentence imposed by the courts below is modified, by ordering the revision petitioner to undergo sentence for imprisonment for one day (till the rising of the court) and to pay a fine amount of Rs.5,50,000/-(Rupees five lakh fifty thousand only) within a period of two months from today, and in default to undergo simple imprisonment for a period of six months; - (iv) Needless to mention, if the revision petitioner has already deposited any amount towards the fine amount, only the balance amount need be deposited. - (v) In case of failure of the revision petitioner to appear before the Trial Court to undergo the sentence and pay the fine amount as directed above, the Trial Court shall execute the sentence and recover the fine amount from the revision petitioner, in accordance with law. ``` Crl.R.P.No.2081/2011 ``` ``` -:16:- ``` - (vi) If the fine amount is recovered, the same shall be released to the first respondent as compensation under Section 357(1) Cr.P.C, and in accordance with law. - (vii) The execution of the sentence shall stand deferred till 04.12.2023. - (viii) The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance. Sd/- ## **C.S.DIAS,JUDGE** DST/04.10.23 //True copy// P.A.To Judge