V.S. Sunojkumar v. Unnikkannan Jewellery Chelakkara & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA,** **1944** ## **CRL.REV.PET NO. 848 OF 2022** **AGAINST THE JUDGMENT OF CONVICTION IN CRL.A.NO.212/2016 DATED 30/8/2022 OF I ADDITIONAL SESSIONS COURT, THRISSUR ST NO.113/2015 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT,** ## **THRISSUR DATED 19/9/2016** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **V.S.SUNOJKUMAR, AGED 47 YEARS, S/O.SUKUMARAN, VAZHAPPILLY HOUSE, CHIYYARAM.P.O., NEAR ALUMVETTUVAZHY, THRISSUR - 680026** **BY ADVS. C.A.CHACKO C.M.CHARISMA** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE :** - **1 UNNIKKANNAN JEWELLERY CHELAKKARA, REPRESENTED BY VINODAN, S/O.THOTTIPPAL SANKUNNI, PUCHUNNIPPADAM, URAKAM.P.O., CHEVOOR, THRISSUR – 680562.** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** ## **BY SRI.SANAL P RAJ, PUBLIC PROSECUTOR** ## **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR** **ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P.No.848 of 2022 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.R.P.No.848 of 2022 -------------------------------------------------------Dated this the 5[th] day of January, 2023** ## **O R D E R** This is a revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience) and the revision petitioner herein is the accused in S.T.No.113 of 2015 on the files of the Special Additional Chief Judicial Magistrate Court, Thrissur. The respondents herein are the original complainant as well as the State of Kerala. 2. The revision petitioner impugns judgment in S.T.No.113 of 2015 dated 19.09.2016 and the judgment Crl.R.P.No.848 of 2022 ..3.. in Crl.Appeal No.212 of 2016 dated 30.08.2022 on the file of the Ist Additional Sessions Court, Thrissur. 3. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor on admission. Notice to the first respondent/the original complainant stands dispensed with. 4. I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience. 5. Summary of the case put up by the complainant before the trial court is as under: The complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as 'NI Act' for convenience) by the accused on the allegation that, when cheque for Rs.20 lakh issued by the accused to the complainant dated 05.11.2012 to Crl.R.P.No.848 of 2022 ..4.. repay the balance amount towards sale price for the purchase of gold ornaments from the jewellery of the complainant by name M/s.Unnikkannan Jewellery on 05.11.2012, was dishonoured, when it was presented for collection. After dishonour of the cheque, the complainant issued legal notice of demand and the accused failed to repay the same even after notice. 6. The trial court secured the presence of the accused for trial and during trial, PW1 examined and Exts.P1 to P8 were marked on the side of the complainant. 7. Thereafter, the accused was given opportunity to adduce defence evidence after questioning her under Section 313(1)(b) of Cr.P.C. Thus, the accused himself got examined as DW1. 8. The trial court appraised the evidence and Crl.R.P.No.848 of 2022 ..5.. finally, convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for till rising of the Court and to pay fine of Rs.20 lakh to the complainant as compensation under Section 357(3) of Cr.P.C. In default of payment of fine, simple imprisonment for a period of three months also was imposed. 9. Though the accused challenged the judgment dated 19.09.2016 before the appellate court, the appellate court, as per judgment in Crl.Appeal No.212 of 2016 dated 30.08.2022, dismissed the appeal and thereby, conviction and sentence were confirmed. 10. The learned counsel for the revision petitioner argued that the complainant had no _locus standi_ to file the complaint, since no authorization produced before the trial court. He also submitted that, Crl.R.P.No.848 of 2022 ..6.. though this contention was raised before the trial court as well as the appellate court, this contention was negatived relying on Ext.P6 partition deed as well as Ext.P8 certificate showing that the complainant is the Managing Director of the partnership firm and the name of the jewellery covered by Ext.P6 partnership deed was changed as M/s.Unnikkannan Jewellery as per Ext.P8 certificate. 11. In fact, the trial court as well as the appellate court, acting on Exts.P6 and P8 read along with the evidence of PW1, negatived the contention and there is no reason to interfere in the said finding in the facts of the given case. 12. The learned counsel for the accused argued that DW1 was examined by the accused to prove that Ext.P1 cheque was issued in favour of DW1 at the time Crl.R.P.No.848 of 2022 ..7.. when Rs.1,50,000/- was borrowed from DW1 by the complainant. The courts below not given emphasis to the evidence of DW1 as the same found to be not convincing. It is to be noted that no reply notice sent by the accused on getting demand notice in this matter involving a huge sum of Rs.20 lakh, though it is not mandatory to send reply notice always or else, the same by itself is not a ground to disbelieve the defence case. However, nonissuance of demand notice is a probability to read along with other aspects particularly when the amount in the cheque in this case is a gigantic sum to the tune of Rs.20 lakh. 13. The specific case of the complainant is that the accused purchased gold ornaments worth Rs.20,31,316/on 05.11.2012. Therefore, this contention cannot be appreciated. In this case, the trial court as well as the Crl.R.P.No.848 of 2022 ..8.. appellate court given emphasis to the evidence of PW1 and Exts.P1 to P8 to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque. Thereby, the courts below given benefit of presumption under Sections 118 and 139 of the NI Act in favour of the complainant. Law regarding presumption is also settled as well. 14. In 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 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_ Crl.R.P.No.848 of 2022 ..9.. _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 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_ Crl.R.P.No.848 of 2022 ..10.. _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.”_ 15. 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 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_ Crl.R.P.No.848 of 2022 ..11.. _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.”_ 16. 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 Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I Act it was held as under: Crl.R.P.No.848 of 2022 ..12.. _“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 :_ Crl.R.P.No.848 of 2022 ..13.. _2019 (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.”_ 17. Thus the law is clear on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. Crl.R.P.No.848 of 2022 ..14.. 18. It is the well settled legal position that power of revision is not akin to power of appeal. 19. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 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 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_ Crl.R.P.No.848 of 2022 ..15.. _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. ...”_ 20. 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. Following has been laid down in para.14 (SCC p.135) : Crl.R.P.No.848 of 2022 ..16.. _“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.”_ 21. 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 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 Crl.R.P.No.848 of 2022 ..17.. 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. 22. On evaluation of the matters available by exercising the limited power of revisional jurisdiction exercised by this Court, nothing substantiated to revisit the concurrent verdicts of the trial court and the appellate court. Therefore, the conviction and sentence stand Crl.R.P.No.848 of 2022 **==> picture [26 x 9] intentionally omitted <==** confirmed. 23. Faced with the situation, the learned counsel for the revision petitioner/accused sought ten months time to pay the fine amount. Considering the fine amount would come to Rs.20 lakh and in consideration of the fact that the transaction was in the year 2012, I am inclined to grant three months time from today to the revision petitioner/accused to pay the compensation/fine. 24. In the result, this revision petition fails and it is, accordingly, dismissed. 25. However, the revision petitioner/accused is given three months time from today to pay the compensation and to undergo the sentence. Therefore, the revision petitioner/accused is directed to appear before the trial court on 04.04.2023 to pay the compensation and to undergo the sentence. The execution Crl.R.P.No.848 of 2022 ..19.. of the sentence shall stand deferred till 03.04.2023. On failure to do so, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj