Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 20TH DAY OF JULY 2023 / 29TH ASHADHA, 1945 CRL.REV.PET NO. 988 OF 2018 AGAINST THE ORDER/JUDGMENTCC 189/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, THIRUVANANTHAPURAM(SPECIAL COURT-MARKLIST CASES) CRA 241/2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, THIRUVANANTHAPURAM / IV ADDITIONAL MACT REVISION PETITIONER/S: GOPAKUMAR AGED 61 YEARS S/O. LATE DAMODARAN, 5A, SFS CAPITAL -1, VSRA, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695010 BY ADVS. SRI.M.AJAY K.R.RAJKUMAR RESPONDENT/S: K.R. ANITHA W/O. SUNIL GANGADHARAN, TC 6/184, THARAVADU, VATTIYOORKAVU, KODUNGANNOOR P.O, THIRUVANANTHAPURAM, PIN - 695013 BY ADV SHAJIN S.HAMEED OTHER PRESENT: PP M P PRASANTH,SHAJIN S HAMEED-R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Dated this the 20th day of July, 2023 This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in C.C.No.189/2010 on the files of the Judicial First Class Magistrate Court-V, Thiruvananthapuram and the appellant in Crl.A.No.241/2015 before the Court of Additional Sessions Judge-7, Thiruvananthapuram. The respondents herein are the original complainant as well as State of Kerala. The revision petitioner assails the trial court
judgment dated 28.07.2015 and the appellate court judgment
dated 11.05.2018 in the above cases.
2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience.
3. Heard the learned counsel for the accused and the learned Public Prosecutor, representing State. The learned counsel for the 1st respondent/complainant also was heard.
4. In this matter, the complainant launched
prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I. Act for convenience), when cheque for Rs.15,00,000/- dated 20.08.2020 alleged to be issued by the accused for discharge of the said sum in favour of the husband of the complainant was dishonored for want of funds. The complainant herein is the wife of Sri. Sunil Gangadharan who expired on 26.08.2020, after issuance of cheque by the accused.
5. The trial court secured the presence of accused
and complainant for trial and finally tried the matter. During trial, PW1 and PW2 examined and Exts.P1 to P6 marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given, nobody examined and no evidence adduced on the side of the defence.
6. Thereafter, the trial court appraised the
contention and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for one year and to pay a compensation to the tune of Rs.15,00,000/- and in default of payment of fine simple imprisonment for three months also was imposed.
7. Although, the accused challenged the conviction
and sentence imposed by the trial court, before the Additional Sessions Judge, the learned Additional Sessions Judge also confirmed the conviction and sentence imposed by the trial court.
8. The learned counsel for the accused/revision
petitioner, while attempting to upset the concurrent verdicts, though reiterated the contentions raised before the trial court, in the matter of transaction and execution of Ext.P1 cheque as well as the competency of the complainant to prosecute the accused, after the death of her husband, he conceded that the revision petitioner/accused is ready to remit the amount if four months time to be granted for payment.
8. The learned counsel appearing for the
complainant/1st respondent would submit that the prayer for payment may be considered and none of the contentions raised in this revision to unsustain the concurrent verdicts of conviction and sentence would succeed.
10. In this context, I am inclined to refer the power
of revision available to this Court under Section 401 of Cr.P.C. r/w Section 397, which 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 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. ...”
11. 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) :
“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.”
12. 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 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.
13. In this case, the trial court as well as the
Appellate Court given emphasis to the evidence of PW1 to hold that, the accused issued Ext.P1 cheque in favour of the husband of the complainant and after the death of the husband of the complainant, as per the mandate of Section 78 of the NI Act, the complainant being one of the legal representatives of the holder of the cheque could proceed with the prosecution. Thereafter, the trial court appraised the evidence of PW1, PW2 and Exts.P1 to P6 and found that the complainant discharged his initial burden in the
matter of transaction and execution of cheque. Therefore, the trial court given benefit of presumptions in favour of the complainant and convicted and sentenced the accused. Eventhough the said conviction and sentence were challenged before the appellate court, the appellate court also confirmed the conviction and sentence on re appreciation of evidence.
14. Law regarding presumption is well settled. 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 punishable 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 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 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 Cri LJ 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 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:
“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 2nd 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 : 2019
(1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 :
AIR 2019 SC 2446 : 2019 Cri LJ 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. since nothing substantiated to revisit to upset the
concurrent verdicts of conviction entered in by the Trial Court as well as the appellate court, the same do not require any interference and as such the conviction stands confirmed. As far as the sentence is concerned, the same requires modification to do substantial justice with a view to effectuate repayment of the cheque amount, in the interest of justice.
18. In the result, this revision petition is allowed in part. The conviction stands confirmed and the sentence stands modified as under:-
(i) The accused/revision petitioner is sentenced to
undergo simple imprisonment for a day till raising of the Court and to pay fine of Rs.15,00,000/- and the fine shall be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of ten months.
(ii) Acting on the request of the learned counsel for the
petitioner to grant for four months time to pay the fine/compensation, and the same was not opposed by the learned counsel for the 1st respondent, though the transaction is of the year 2010, I am inclined to grant four months time to the accused from today to pay the fine and to undergo the sentence.
19. Therefore, the revision petitioner/accused is
directed to surrender before the trial court on 20.11.2023 to undergo the sentence and to pay the fine. If the revision petitioner/accused fails to surrender, as directed, the trial court shall execute the sentence as per law without fail. The execution of sentence stands deferred till 19.11.2023.
20. The revision petition stands allowed in part as
indicated herein above. Registry is directed to forward a copy of this order to the trial court for information and compliance within two weeks. Sd/- A. BADHARUDEEN RMV JUDGE