Vincent Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941** **Crl.Rev.Pet.No.179 OF 2020** **AGAINST THE JUDGMENT IN CRA 178/2017 OF THE PRINCIPAL SESSIONS COURT,KOLLAM** **AGAINST THE JUDGMENT IN CC 35/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, KOTTARAKAKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **VINCENT MATHEW AGED 38 YEARS S/O MATHEW KUTTY, VINCENT HOUSE, KAROORKONAM, CHERUVAKKAL P.O.AYOOR, ELAMADU VILLAGE, KOTTARAKKARA, KOLLAM-691 533.** **BY ADVS. SRI.SHABU SREEDHARAN SRI.ANOOP ANTONY SRI.P.K.SEBASTIAN AHRI.REJEESH M.A. SMT.VARADA SURENDRAN SMT.RADHIKA U.** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2 NIZAR, AGED 45 YEARS S/O EBRAHIM KUTTY, AJMAL MANZIL, VATTAPPARA, KARINGANNOOR P.O.KOTTARAKKARA, KOLLAM-691 516.** ## R1 **BY SRI AJITH MURALI-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON 12.02.2020 PASSED THE FOLLOWING:** **Crl.R.P.No.179 of 2020** **2** ## **R. NARAYANA PISHARADI, J** ## **------------------------------------------Crl.R.P.No.179 of 2020** **--------------------------------------------** Dated this the 12[th] day of February, 2020 ## **O R D E R** The revision petitioner is the accused in the case C.C No.35/2014 on the file of the Court of the Judicial First Class Magistrate-III, Kottarakkara. 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. The trial court sentenced the petitioner to undergo simple imprisonment for a period of six months and also directed him to pay an amount of Rs.4,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Crl.A.No. 178/2017 before the Court of Session, Kollam, challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner for the offence under Section 138 of the Act . The appellate court also confirmed the sentence of **Crl.R.P.No.179 of 2020** **3** imprisonment imposed on the petitioner by the trial court but modified the amount of compensation and reduced it to Rs.3,25,000/- 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard the learned counsel for the revision petitioner and also the first respondent/complainant. 6. The case of the complainant is as follows: On 02.01.2010, the accused approached the complainant and requested him to lend him an amount of Rs.3,25,000/-. On 05.01.2010, the complainant gave an amount of Rs. 3,25,000/- to the accused which he had obtained in a chitty transaction. The complainant gave the amount to the accused through a cheque. When the complainant demanded repayment of the amount, the accused came to the house of the complainant on 10.12.2011 and issued him a cheque dated 25.02.2012 for Rs. 3,25,000/- in discharge of the liability. 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 accused **Crl.R.P.No.179 of 2020** **4** received the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P7 and Exts. X1 to X3 documents were marked on his side. PW2 and PW3 were also examined on the side of the complainant. No oral evidence was adduced by the accused, but Ext.D1 was marked on his side. 8. When examined as PW1, the complainant gave evidence that the accused had borrowed Rs.3,25,000/- from him on 05.01.2010. PW1 also gave evidence that the accused came to his house on 10.12.2011 and executed and issued Ext.P1 cheque for Rs.3,25,000/- in discharge of the aforesaid liability. PW1 specifically stated that the accused signed the cheque in front of him and gave it to him. 9. PW3 was examined to prove the borrowal of the amount by the accused from the complainant and also the issuance of the cheque by the accused. He corroborated the testimony of PW1. 10. The evidence of PW1 proves the execution of Ext.P1 cheque by the accused. Then, the burden is upon the accused to rebut the presumption under Section 139 of the Act. 11. The plea of the accused was that there was real estate transaction between him and the complainant and at that time, he had **Crl.R.P.No.179 of 2020** **5** given the cheque to the complainant and that the complainant misused the aforesaid cheque and filed the case. 12. No reliable evidence was adduced by the accused to prove his plea. Ext.D1 agreement produced by the accused does not serve any useful purpose because the complainant has admitted that there was property transaction between him and the accused. However, there is no evidence at all to find that the accused had given any cheque to the complainant at the time of the transaction evidenced by Ext.D1 agreement. 13. The case of the complainant is that he gave the amount to the accused through a cheque. The complainant summoned the aforesaid cheque from the bank and it was produced by PW2, the manager of the bank and marked as Ext.X1. The fact that the accused denied the signature on the reverse side of Ext.X1 cheque is of no significance. The complainant had also produced the statement of account in the bank in his name and also the original pass book issued to him from the bank. He also produced Ext.P7 chitty pass book to prove that he had obtained the amount in a chitty transaction. 14. In the aforesaid circumstances, I find no illegality, impropriety or perversity in the appreciation of evidence or the findings entered against the petitioner by the courts below. The courts **Crl.R.P.No.179 of 2020** **6** below have come to the correct conclusion that execution of Ext.P1 cheque was proved by the complainant and that the accused failed to rebut the presumption under Section 139 of the Act in any manner. 15. 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.R.P.No.179 of 2020** **7** 16. The trial court imposed a sentence of simple imprisonment for a period of six months on the petitioner/accused. The appellate court has not interfered with the aforesaid sentence imposed on the petitioner/accused by the trial court. Considering the facts and circumstances of the case, I find that it is not necessary to impose any substantive sentence of imprisonment on the petitioner/accused. At the same time, considering the fact that the cheque was issued in the year 2012, I find that a sentence of fine which shall be for more than the amount of the cheque, has to be imposed on the accused and such amount has to be ordered to be paid as compensation to the complainant. 17. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused for the offence punishable under Section 138 of the Act by the trial court, which stands affirmed by the appellate court, is confirmed. The sentence of simple imprisonment for a period of six months imposed on the petitioner/accused by the trial court, which stands affirmed by the appellate court, is set aside. In supersession of the sentence imposed on the petitioner/accused by the courts below, the petitioner/accused is sentenced to pay a fine of Rs. 3,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. If the fine amount is **Crl.R.P.No.179 of 2020** **8** realised, it shall be paid as compensation to the complainant. The petitioner/accused is granted a period of six months from today to remit the fine amount in the trial court. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn