Zachariya v. P.K. Radhakrishnan and Anr

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945** **CRL.REV.PET NO. 1117 OF 2011** **AGAINST THE ORDER/JUDGMENT IN CC 479/2002 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS -II, ERNAKULAM** **CRA 181/2010 OF ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM** ## **REVISION PETITIONER/S:** ZACHARIYA, AGED 41 YEARS C/O.HOTEL SAFEWAY,, CANNON SHED ROAD, ERNAKULAM,, KOCHI-11, NOW RESIDING AT PARAMBATH HOUSE,, 39/3444, MANIKAKATHU CROSS ROAD,, RAVIPURAM, COCHIN-16. BY ADV SRI.A.P.SUBHASH ## **RESPONDENT/S:** 1 P.K.RADHAKRISHNAN AND ANOTHER "KARIPPAYIL", DR.O.K.MADHAVI AMMA ROAD,, ERNAKUALM, KOCHI-18. 2 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.T.T.HARIKUMAR SRI.T.B.THANKAPPAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 1117 OF 2011 2 ## **ORDER** The revision petitioner calls in question the legality and correctness of the judgments of the Court of the Additional Sessions Judge (Adhoc-I), Ernakulam (Appellate Court) in Crl.Appeal No.181/2010 confirming the judgment of the Court of the Judicial First Class Magistrate-II, Ernakulam (Trial Court) in C.C.No.479/2002, convicting and sentencing the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act (in short, “N.I.Act”). The revision petitioner was the accused and the 1[st] respondent was the complainant before the Trial Court. ## The facts in brief: 2. The 1[st] respondent had filed the complaint before the Trial Court against the revision petitioner alleging that he had borrowed an amount of Rs.48,000/- from the complainant and had issued Ext.P1 cheque in discharge of a legally enforceable debt. The cheque, on presentation to the bank for collection, got dishonored by CRL.REV.PET NO. 1117 OF 2011 3 Ext.P2 memorandum due to insufficient funds in the account of the revision petitioner. Despite issuing Ext.P3 lawyer notice to the revision petitioner, who acknowledged the receipt of the same, he failed to pay the demanded amount. Thus, the revision petitioner has committed the offence under Section 138 of the N.I.Act. 3. The revision petitioner pleaded not guilty to the substance of accusation read over to him. In the Trial, the 1[st] respondent was examined as PW1 and Exts.P1 to P4 were marked in evidence. The revision petitioner denied the incriminating circumstances put against him in the questioning under Section 313 of the Code of Criminal procedure ( in short, “Cr.P.C.”) The revision petitioner examined himself and three other witnesses as DWs 1 to 4 and marked Exts.D1 to D6 in evidence. Exts.X1 and X1(a) reports of the experts were also marked. CRL.REV.PET NO. 1117 OF 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 one month and pay a fine of Rs.80,0000/-, and in default to undergo simple imprisonment for a further period of three months. If the fine amount was realised, the same to be paid as compensation to the 1[st] respondent under Section 357(1) of the Cr.P.C. 5. Aggrieved by the said judgment, the revision petitioner filed Criminal Appeal No.181/2010 before the Appellate Court. ## Appellate Court judgment 6. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment, confirmed the conviction; but modified the sentence, by directing the revision petitioner to undergo imprisonment CRL.REV.PET NO. 1117 OF 2011 5 till the rising of the Court and to pay a fine of Rs.55,000/and in default to undergo simple imprisonment for a period of two months. 7. It is assailing the concurrent findings in the judgments passed by the courts below, the revision petition is filed. 8. When the revision petition came up for consideration on 14.07.2020, 04.08.2020, 01.09.2020, 29.09.2020 and 02.11.2020, there was no representation for the revision petitioner. In the said situation, this Court, by order dated 03.12.2020, appointed Sri.Abraham Mathan as the Amicus Curiae to assist this Court to dispose of the revision petition. Subsequently, when the revision petition came up for hearing on 05.09.2023, it was reported that the learned counsel for the revision petitioner is no more. Consequently, this Court directed the Registry to issue a registered notice to the revision petitioner informing him about the death of the counsel and to make alternative arrangement to CRL.REV.PET NO. 1117 OF 2011 6 prosecute the revision petitioner. Even though the notice was send to the revision petitioner, the same was returned with an endorsement as “not known”. In the above background, taking into consideration that the revision petition is of the year 2011 and that the lower court records have been received, this Court decided to hear and dispose of the revision petition with the assistance of the learned Amicus Curiae and the materials on record. 9. The question is whether there is any illegality, impropriety or irregularity in the judgments of the courts below. 10. It is well-settled that the revisional power 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. Unless there is patent illegality or manifest error, this Court shall refrain itself from exercising its revisional powers under Sections 397 to 401 of the Cr.P.C. CRL.REV.PET NO. 1117 OF 2011 7 11. In **Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the powers under Secs.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 nonconsideration 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 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. Now, coming back to the facts of the case at hand. ## 13. The 1[st] respondent's case is that the revision CRL.REV.PET NO. 1117 OF 2011 8 petitioner had borrowed an amount of Rs.48,000/- from him and in discharge of the said liability he had issued Ext.P1 cheque, which got dishonored on presentation to the bank due to insufficiency of fund in the account of the revision petitioner. Despite issuing Ext.P3 lawyer notice, he failed to pay the demanded amount. Hence, he committed the above offence. 14. The revision petitioner raised a defence alleging that he had only a transaction with the brother of the 1[st] respondent, who had collected ten cheque leaves from the revision petitioner as security. Although he had discharged the liability of the 1[st] respondent's brother, he refused to return the cheques to the revision petitioner. The 1[st] respondent's brother had filed a complaint against the revision petitioner also alleging him to have committed an offence under Section 138 of the N.I.Act. Subsequently, the matter was settled between the parties and the complaint was withdrawn. It is thereafter that the present complaint is filed. CRL.REV.PET NO. 1117 OF 2011 9 15. In the trial, the revision petitioner had sought for getting Ext.P1 cheque examined by an expert. In Exts.X1 and X1(a) reports, the expert had opined that the signature on the cheque was that of the revision petitioner. Even though the revision petitioner examined the 1[st] respondent's brother as DW1, he denied the allegation that the revision petitioner had issued cheques to him as security. 16. The courts below, after appreciating the materials placed on record, concurrently found that the revision petitioner had issued the cheque and he had committed the offence under Section 138 of the N.I.Act. 17. A negotiable instrument, which includes a cheque, carries the presumption of consideration under Secs.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 CRL.REV.PET NO. 1117 OF 2011 10 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”. ## 18. A three-Judge Bench of the Hon’ble Supreme Court in **Rangappa vs. Sri.Mohan** [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has 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 CRL.REV.PET NO. 1117 OF 2011 11 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. 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 CRL.REV.PET NO. 1117 OF 2011 12 into play and the same has not been rebutted even with regard to the materials submitted by the complainant”. 19. Recently, a three-Judge Bench of the Hon’ble Supreme Court in **Kalamani Tex and Anr vs. P. 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).” ## 20. Similarly, in **M/s.Shree Daneshwari Traders vs** **Sanjay Jain** [2019 (4) KHC 495], the Hon’ble Supreme Court has held as follows: “16. Under Section 138 of the Negotiable Instruments Act, once presumption the cheque under is Section issued 139 by the drawer, a of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the CRL.REV.PET NO. 1117 OF 2011 13 complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt. 17. It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut the presumption”. 21. The defence set up by the revision petitioner is that Ext.P1 was not issued towards a legally enforceable debt, but the 1[st] respondent had made use of the cheque that was given by the revision petitioner to his brother Suresh Babu. 22. In **Rangappa** (supra), the Honourable Supreme Court has held that, one such 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 reply to the statutory lawyer notice issued by the complainant under Section 138 of the N.I.Act, then an inference has to be drawn in favour of the complainant. 23. In **Kalamani Tex** (supra), the Honourable Supreme Court has held that even if a blank cheque leaf CRL.REV.PET NO. 1117 OF 2011 14 is voluntarily signed and handed over by the accused towards some payment, the statutory presumption under Section 139 of the N.I.Act cannot be obliterated. 24. In the case on hand the revision petitioner examined himself and three other witnesses to establish that Ext.P1 cheque was not issued towards a legally enforceable debt. The courts below, after appreciating the oral testimonies of PW1 and DWs 1 to 4 and Exts.P1 to P4 and analysing Exts.D1 to D6 and Exts.X1 and X1(a) reports, have concurrently arrived at a conclusion that Ext.P1 was issued towards a legally enforceable debt. 25. After analysing the materials on record, I do not find any error or illegality in the courts below holding that the revision petitioner is guilty for the offence under Section 138 of the N.I.Act. 26. Taking into account the fact that this Court had admitted the revision petition as early as in 2011 and had suspended the execution of sentence, I am of the view CRL.REV.PET NO. 1117 OF 2011 15 that the revision petitioner should be granted atleast one month time to pay the fine amount and if the same is realised, the same should be handed over to the 1[st] respondent in accordance with law. This Court places on record its appreciation for Sri.Abraham Mathan, the learned Amicus Curiae, for his valuable services rendered in disposing the revision petition. In the result; - (i) The revision petition is dismissed; - (ii) The conviction imposed by the courts below and the sentence imposed by the Appellate Court are confirmed; - (iii) The revision petitioner is directed to appear before the Trial Court on or before 05.11.2023, to undergo the substantive sentence and to pay the fine amount; - (iv) Needless to mention, if the revision petitioner has already deposited any amount towards the fine amount, as directed by this Court, only the balance CRL.REV.PET NO. 1117 OF 2011 16 amount need be deposited; - (v) In case of failure of the revision petitioner to appear before the Trial Court, to undergo the sentence and to pay the compensation amount as directed above, the Trial Court shall execute the sentence and recover the compensation amount, in accordance with law. - (vi) The execution of the sentence shall stand deferred till 05.11.2023. - (vii) The Registry is directed to forthwith forward a copy of this order to the Trial Court for compliance. Sd/- **C.S.DIAS JUDGE** rkc/05.10.23