VIJESH R v STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **Crl.Rev.Pet.No.226 OF 2020** **AGAINST THE JUDGMENT IN CRA 102/2016 OF DISTRICT COURT & SESSIONS COURT,THALASSERY** **AGAINST THE JUDGMENT IN ST 2690/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **VIJESH. R AGED 35 YEARS S/O. VIAJYAN, RAYAROTH HOUSE, NR.URPAZHASIKAVU, NADAL, EAKKAD, KANNUR-670663.** **BY ADVS. SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE SRI.HARIDAS THAIKKANDY** ## **RESPONDENT/RESPONDENT/STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 K.V. ARIF S/O. ABU, KANIYENTHAVALAPPIL HOUSE, KADACHIRA, CHALA P O, KANNUR-670621.** **R1 BY SRI AJITH MURALI, PP R2 BY ADV. SRI.P.U.SHAILAJAN R2 BY ADV. SRI.M.SURESH KUMAR R2 BY ADV. SRI.V.SREEJITH (K/1398/2000) R2 BY ADV. SMT.VIDYA KURIAKOSE** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON 02.03.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.226 OF 2020** **2** **R. NARAYANA PISHARADI, J ---------------------------------------------------Crl.R.P.No.226 of 2020 -----------------------------------------------------** Dated this the 2[nd] day of March, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.T No. 2690/2015 on the file of the Court of the Judicial First Class Magistrate-I, Kannur. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder and sentenced him to imprisonment till the rising of the court and also to pay a fine of Rs.2,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. The trial court also directed that, if the fine amount was realised, it shall be given as compensation to the complainant. 3. The petitioner filed Crl.A No. 102/2016 before the Court of Session, Thalassery challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. **Crl.Rev.Pet.No.226 OF 2020** **3** 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 5. Heard the learned counsel for the revision petitioner and also the the second respondent/complainant. 6. The case of the complainant is as follows: The complainant was the driver of the accused. While so, the accused got into financial crisis and he sought the help of the complainant. On request by the accused, the complainant pledged the gold ornaments of his wife and gave a total amount of Rs.2,02,290/- to the accused in instalments. On 15.10.2013, when the complainant paid the last instalment of Rs.78,000/-, the accused issued a cheque dated 21.11.2013 for Rs.2,00,000/- to the complainant in discharge of the liability. When the complainant presented the cheque in the bank, it was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The notice was returned to the complainant as unclaimed. The accused did not pay the amount of the cheque. **Crl.Rev.Pet.No.226 OF 2020** **4** 7. During the trial of the case, the complainant got himself examined as PW1 and four other witnesses were examined on his side as PW2 to PW5. Exts.P1 to P9 documents were marked on his side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence regarding the amounts borrowed by the accused from him. He also gave evidence regarding the issuing of Ext.P1 cheque by the accused in discharge of the liability. He stated that the accused had brought the cheque filled up and that the accused signed the cheque in his presence and he gave it to him. 9. The evidence of PW1 proves the execution of Ext.P1 cheque by the accused and delivery of it by him to the complainant. The accused also does not deny or dispute the signature in Ext.P1 cheque. 10. Once the execution of the cheque by the accused is proved by the complainant, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. 11. The plea raised by the accused is as follows: The complainant, who was his driver, had arranged sale of the car belonging to him to one Sandeep. There was a sale agreement **Crl.Rev.Pet.No.226 OF 2020** **5** between the accused and Sandeep. On the date of the agreement, Sandeep paid Rs.50,000/- to the complainant as advance in order to give that amount to the accused. However, the complainant did not pay the amount to the accused. On 09.11.2013, the complainant came to the house of the accused for settling the matter. At that time, he committed theft of the signed blank cheque which was kept by the accused in a cover and he misused the aforesaid cheque and filed the case. 12. No evidence was adduced by the accused to prove the aforesaid plea. Nothing was also brought out in the cross-examination of PW1 to prove that the aforesaid plea is probable. 13. The accused had raised a plea that he had filed a complaint before the police against the complainant with regard to committing theft of the cheque. The accused had also got a plea that he had instituted a suit against the complainant in the Munsiff's Court, Thalassery for return of the cheque. No documents were tendered in evidence by the accused to prove the aforesaid pleas. 14. Even if it is accepted that the accused had filed a complaint before the police alleging that the complainant committed theft of the cheque, the fact that it was filed only after the dishonour of the cheque would indicate the falsity of the plea raised by the accused. His **Crl.Rev.Pet.No.226 OF 2020** **6** plea that he came to know about the loss of the cheque only after the dishonour of the cheque cannot be believed. The accused has got a specific case that he had kept the signed blank cheque in a cover and that the complainant committed theft of the cheque on 09.11.2013, when he came to his house. The cheque was presented in the bank on 25.11.2013. It cannot be believed that the accused was not aware of the loss of the cheque for so many days. At any rate, there is no evidence adduced by the accused to prove the aforesaid plea. 15. Moreover, there is no plausible and convincing explanation given by the accused as to why he had kept a signed blank cheque in his house. 16. The complainant has got a specific case that he had pledged the gold ornaments of his wife and raised the amount for lending it to the accused. The complainant examined his wife as PW2 to prove the pledging of gold ornaments. The complainant also examined PW3 to PW5, the Managers of the co-operative banks to prove that he had pledged gold ornaments in the banks on particular dates and availed loan. Therefore, there is overwhelming evidence to prove the case of the complainant. There is no contra evidence. The presumption under Section 139 of the Act is also not rebutted by the accused. **Crl.Rev.Pet.No.226 OF 2020** **7** 17. In the aforesaid circumstances, I find no illegality, impropriety or perversity in the appreciation of evidence and the findings entered against the accused by the courts below. 18. The courts below have appreciated the evidence and made concurrent findings. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, 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 this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. **Crl.Rev.Pet.No.226 OF 2020** **8** 19. The trial court has shown maximum leniency to the petitioner/accused in awarding the sentence. The sentence imposed on the petitioner/accused also does not call for any interference by this Court. 20. Consequently, the revision petition is dismissed. The order of conviction and sentence passed against the petitioner/accused by the trial court, which stands affirmed by the appellate court, is confirmed. However, the petitioner/accused is granted a period of four months from today to remit the fine amount in the trial court. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn