Kerala High CourtSatheesh Babu vs Antony Lancy on 30 September, 2022IN THE HIGH COURT OF KERALA AT ERNAKULAM\n                             PRESENT\n            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN\n  FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944\n                   CRL.REV.PET NO. 639 OF 2022\n  AGAINST THE JUDGMENT DT.30.11.2021 IN CRA 309/2020 OF II\n               ADDITIONAL DISTRICT COURT,ERNAKULAM\n                ST 3085/2017 OF JMFC, KALAMASSERY\nREVISION PETITIONER/APPELLANT/ACCUSED:\n\n            SATHEESH BABU\n            AGED 55 YEARS\n            SON OF SIVADASAN NAIR,\n            MANGALATH HOUSE, MANJUMMEL P O, ERNAKULAM DISTRICT,\n            PIN - 686501\n\n            BY ADV LIFFY P. FRANCIS\n\n\nRESPONDENT/RESPONDENTS/COMPLAINANT & STATE:\n\n    1       ANTONY LANCY\n            AGED 47 YEARS\n            SON OF PETER,\n            PALAYATHIL HOUSE, MANJUMMEL P O,\n            ERNAKULAM DISTRICT, PIN - 683501\n\n    2       STATE OF KERALA\n            REPRESENTED BY THE PUBLIC PROSECUTOR,\n            HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031\n\n\n            BY ADVS.\n            SALMANUL FASIL O.P.\n            K.A.RASHEED(R-799)\n\n             SENIOR PUBLIC PROSECUTOR SRI T.R.RENJITH\n\n\n     THIS   CRIMINAL   REVISION   PETITION   HAVING   BEEN   FINALLY\nHEARD ON 22.09.2022, THE COURT ON 30.09.2022 DELIVERED THE\nFOLLOWING ALONG WITH CRRP.640/2022:\n Crl.R.P.NoS.639 & 640 of 2022              2\n\n\n\n\n               IN THE HIGH COURT OF KERALA AT ERNAKULAM\n                                      PRESENT\n              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN\n  FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944\n                        CRL.REV.PET NO. 640 OF 2022\nAGAINST THE JUDGMENT DATED 30.11.2021 IN CRA 308/2020 OF II\n                  ADDITIONAL DISTRICT COURT,ERNAKULAM\n                    ST 2850/2017 OF JMFC, KALAMASSERY\nREVISION PETITIONER/APPELLANT/ACCUSED:\n\n              SATHEESH BABU\n              AGED 55 YEARS\n              SON OF SIVADASAN NAIR,\n              MANGALATH HOUSE, MANJUMMEL P O, ERNAKULAM\n              DISTRICT, PIN - 686501\n\n              BY ADV LIFFY P. FRANCIS\n\n\nRESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:\n\n      1       ANTONY LANCY, AGED 47\n              SON OF PETER,\n              PALAYATHIL HOUSE, MANJUMMEL P O,\n              ERNAKULAM DISTRICT, PIN - 683501\n      2       STATE OF KERALA\n              REPRESENTED BY THE PUBLIC PROSECUTOR,\n              HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031\n\n\n              SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE\n\n\n       THIS     CRIMINAL        REVISION   PETITION   HAVING   BEEN   FINALLY\nHEARD ON 29.09.2022, THE COURT ON 30.09.2022 DELIVERED THE\nFOLLOWING ALONG WITH CRRP.NO.639/2022:\n Crl.R.P.NoS.639 & 640 of 2022        3\n\n\n\n\n                        A. BADHARUDEEN, J.\n               ================================\n                    Crl.R.P.Nos.639 and 640 of 2022\n               ================================\n                Dated this the 30th day of September, 2022\n\n\n                                COMMON ORDERThese Revision Petitions have been filed underSection 397and401of Cr.P.C challenging the common judgment in\n\nS.T.No.2850/2017 and S.T.No.3085/2017 dated 27.02.2020 on the\n\nfile of the Judicial First Class Magistrate Court, Kalamassery,\n\nconfirmed in Crl.Appeal No.309/2020 on the file of the II\n\nAdditional Sessions Court-II, Ernakulam, as per the judgment\n\ndated 30.11.2021.2.     Heard the learned counsel for the revision petitioner\n\nand the learned Public Prosecutor. Notice to the 1st respondent, the\n\noriginal complaimant stands dispensed with.3.     I shall refer the parties in this Revision Petition as\n Crl.R.P.NoS.639 & 640 of 2022      4\n\n\n\n\n`complainant' and `accused'.4.     On dishonour of cheque for Rs.25,000/- issued by the\n\naccused, dated 3.8.2016, drawn on Union Bank, Manjummel\n\nbranch, the complainant launched prosecution and on cognizance\n\nof the same, the learned Magistrate numbered the case as\n\nS.T.No.2850/2017. Similarly, consequent on dishonour of cheque\n\ndated 8.8.2016 for Rs.1,32,960/- drawn on Union Bank,\n\nManjummel branch, another prosecution was launced alleging\n\ncommission of offence underSection 138of the Negotiable\n\nInstruments Act and after taking cognizance, the learned Magistrate\n\nnumbered the case as S.T.No.3085/2017. The learned Magistrate\n\njointly tried the above cases and recorded the evidence. During\n\ntrial, PW1 examined. Exts.P1 to P9 were marked on the side of the\n\ncomplainant. No evidence adduced on the part of the accused.5.     The learned Magistrate appraised the contentions raised\n\nby the complainant that in the month of July, 2016 the complaimant\n Crl.R.P.NoS.639 & 640 of 2022      5\n\n\n\n\nand the accused verfied the income and expenditure of the shop run\n\nby the complainant and entrusted the same to the accused, since the\n\ncomplainant went to Bangalore for his studies. The specific case\n\nput up by the complainant before the trial court was that 2 cheques\n\nissued for Rs.25,000/- and Rs.1,32,960/- (Exts.P1 & P2) to the\n\ncomplainant by the accused, when presented for collection, the\n\nsame dishonoured for want of funds. Though legal notice was\n\nissued, the complainant did not accept the notice and the same was\n\nreturned with endorsement`unclaimed'.6.     Relying on the evidence of PW1 and Exts.P1 to P9, the\n\ntrial court found that the complainant discharged the initial burden\n\ncast upon him in the matter of transaction led to execution of\n\nExts.P1 and P2 cheques. The trial court also found that nothing\n\navailable in evidence to rebut the presumption underSection 118and139of the Negotiable Instruments Act and therefore, in both\n\nthe cases the accused convicted and sentenced as under:Crl.R.P.NoS.639 & 640 of 2022                6"In S.T 2850/17 the accused is found guilty of offence punishable\n       undersection 138of the N.I Act and convicted undersection 255(2)of the\n       Cr.P.C and he is sentenced to undergo simple imprisonment for 3 months\n       and to pay fine of Rs.25,000/- (Rupees Twenty five thousand only). In\n       default of payment of fine, the accused shall undergo simple imprisonment\n       for one month more. If thefine amount is paid or realized the same shall be\n       paid to the complainant as compensation undersection 357(1)of the\n       Cr.P.C.         In S.T. 3085/17, the accused is found guilty of offence\n       punishable undersection 138of the N.I Act and convicted undersection\n       255(2)of the Cr.P.C and he is sentenced to undergo simple imprisonment\n       for 3 months and to pay fine of Rs.1,32,960/- (Rupees One lakh thirty two\n       thousand and nine hundred and sixty only), in default of payment of fine,\n       the accused shall undergo simple imprisonment for one month more. If the\n       fine amount is paid or realized the same shall be paid to the complainant\n       as compensation undersection 357(1)of the Cr.P.C."7.        Before the trial court, the accused raised contention that\n\nno documents produced to show the transaction between the\n\naccused and the complainant. In fact, the said contention was\n\nfound against.           The said contention was reiterated before the\n\nappellate court as well and by a considered judgment, the appellate\n\ncourt also confirmed the conviction by modifying the sentence for\n\nsimple imprisonment to one month and payment of fine of\n Crl.R.P.NoS.639 & 640 of 2022      7\n\n\n\n\nRs.25,000/- and in default, simple imprisonment for 3 months in\n\nS.T.No.2850/2017 and in S.T 3085/2017, confirmed the conviction\n\nby modifying the sentence for simple imprisonment for 3 months to\n\none month and to pay fine of Rs.1,32,960/- and in default, to\n\nundergo simple imprisonment for 3 months.8.     While challenging the concurrent findings, it has been\n\ncontended by the learned counsel for the revision petitioner that the\n\ncourts below went wrong in convicting and sentencing the accused\n\nsince the details of transaction were not stated in the complaint. In\n\nfact, the said contention not seen raised before the trial court or\n\nbefore the appellate court.       Before the appellate court, the\n\ncontention was raised was to the effect that the cheques were kept\n\nin the shop room for discharging the debt of the suppliers of\n\nvarious items and newspapers to the shop and the said cheques\n\nsomewhere misused by the complainant. However, no evidence\n\nwas adduced to substantiate the said contention.             During\n Crl.R.P.NoS.639 & 640 of 2022      8\n\n\n\n\nexamination of PW1, nothing extracted to disbelieve the evidence\n\nof PW1. Therefore, the courts below relied on the evidence of\n\nPW1, to prove the transaction and execution led to execution of\n\nExts.P1 and P2.9.     Though the learned counsel for the revision petitioner\n\nargued to unsettle the concurrent verdicts entered into by the trial\n\ncourt as well as the appellate court, finally he conceded that the\n\nrevision petitioner/accused will be satisfied with modification of\n\nsentence to one for a day till rising of court and payment of\n\ncompensation. Further he submitted that 8 months' time may also\n\nbe granted to pay the compensation.10. It is the settled law that power of revision available to\n\nthis Court underSection 401of Cr.P.C r/w Section 397 is not wide\n\nand exhaustive to re-appreciate the evidence to have a contra\n\nfinding. In the decision reported in [(1999) 2 SCC 452 : 1999 SCC\n\n(Cri) 275], State of Kerala v. Puttumana Illath JathavedanCrl.R.P.NoS.639 & 640 of 2022                   9Namboodiri, the Apex Court, while considering the scope of the\n\nrevisional jurisdiction of the High Court, laid down the following\n\nprinciples (SCC pp. 454-55, para 5):"5.     ...... In its revisional jurisdiction, the High Court can call\n       for and examine the record of any proceedings for the purpose of\n       satisfying itself as to the correctness, legality or propriety of any finding,\n       sentence or order. In other words, the jurisdiction is one of supervisory\n       jurisdiction exercised by the High Court for correcting miscarriage of\n       justice. But the said revisional power cannot be equated with the power of\n       an appellate court nor can it be treated even as a second appellate\n       jurisdiction. Ordinarily, therefore, it would not be appropriate for the\n       High Court to reappreciate the evidence and come to its own conclusion\n       on the same when the evidence has already been appreciated by the\n       Magistrate as well as the Sessions Judge in appeal, unless any glaring\n       feature is brought to the notice of the High Court which would otherwise\n       tantamount to gross miscarriage of justice. On scrutinising the impugned\n       judgment of the High Court from the aforesaid standpoint, we have no\n       hesitation to come to the conclusion that the High Court exceeded its\n       jurisdiction in interfering with the conviction of       the respondent by\n       reappreciating the oral evidence. ..."11. In another decision reported in [(2015) 3 SCC 123 :(2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray\n\nGulabrao Phalke, the Apex Court held that the High Court inCrl.R.P.NoS.639 & 640 of 2022                 10exercise of revisional jurisdiction shall not interfere with the order\n\nof the Magistrate unless it is perverse or wholly unreasonable or\n\nthere is non-consideration of any relevant material, the order\n\ncannot be set aside merely on the ground that another view is\n\npossible. Following has beenlaid down inpara.14 (SCC p.135) :"14.   ...... Unless the order passed by the Magistrate is perverse or\n     the view taken by the court is wholly unreasonable or there is non-\n     consideration of any relevant material or there is palpable misreading of\n     records, the Revisional Court is not justified in setting aside the order,\n     merely because another view is possible. The Revisional Court is not meant\n     to act as an appellate court.         The whole purpose of the revisional\n     jurisdiction is to preserve the power in the court to do justice in accordance\n     with the principles of criminal jurisprudence. The revisional power of the\n     court underSections 397to401Cr.P.C is not to be equated with that of an\n     appeal. Unless the finding of the court, whose decision is sought to be\n     revised, is shown to be perverse or untenable in law or is grossly erroneous\n     or glaring unreasonable or where the decision is based on no material or\n     where the material facts are wholly ignored or where the judicial discretion\n     is exercised arbitrarily or capriciously, the courts may not interfere with\n     decision in exercise of their revisional jurisdiction."12. The said ratio has been followed in a latest decision of\n\nthe Supreme Court reported in [(2018) 8 SCC 165], Kishan Rao v.Crl.R.P.NoS.639 & 640 of 2022       11\n\n\n\n\nShankargouda. Thus the law is clear on the point that the whole\n\npurpose of the revisional jurisdiction is to preserve power in the\n\ncourt to do justice in accordance with the principles of criminal\n\njurisprudence and, therefore, it would not be appropriate for the\n\nHigh Court to re-appreciate the evidence and come to its own\n\nconclusion on the same when the evidence had already been\n\nappreciated by the Magistrate as well as the Sessions Judge in\n\nappeal, unless any glaring feature is brought to the notice of the\n\ncourt which would otherwise tantamount to gross miscarriage of\n\njustice.     To put it otherwise, if there is non-consideration of any\n\nrelevant materials or fundamental violation of the principle of law,\n\nthen only the power of revision would be made available. In this\n\nconnection, it is relevant to refer the law regarding presumptions.13. In this connection, I would like to refer a 3 Bench\n\ndecision of the Apex Court in [2010 (2) KLT 682 (SC)], Rangappa\n\nv. Mohan. In the above decision, the Apex Court considered theCrl.R.P.NoS.639 & 640 of 2022                12presumption available to a complainant in a prosecution underSection 138of the N.I Act and held as under:"The presumption mandated byS.139of the Act does indeed\n       include the existence of a legally enforceable debt or liability. To that\n       extent, the impugned observations in Krishna Janardhan Bhat [2008\n       (1) KLT 425 (SC)] may not be correct. This is of course in the nature\n       of a rebuttable presumption and it is open to the accused to raise a\n       defence wherein the existence of a legally enforceable debt or liability\n       can be contested. However, there can be no doubt that there is an\n       initial presumption which favours the complainant.S.139of the Act is\n       an example of a reverse onus clause that has been included in\n       furtherance of the legislative objective of improving the credibility of\n       negotiable instruments.    While S.138 of the Act specified a strong\n       criminal remedy in relation to the dishonour of cheques, the rebuttable\n       presumption underS.139is a device to prevent undue delay in the\n       course of litigation. However, it must be remembered that the offence\n       made punishable byS.138can be better described as a regulatory\n       offence since the bouncing of a cheque is largely in the nature of a civil\n       wrong whose impact is usually confined to the private parties involved\n       in commercial transactions.        In such a scenario, the test of\n       proportionality should guide the construction and interpretation of\n       reverse onus clauses and the accused/defendant cannot be expected to\n       discharge an unduly high standard or proof.          In the absence of\n       compelling justifications, reverse onus clauses usually impose an\n       evidentiary burden and not a persuasive burden. Keeping this in view,\n       it is a settled position that when an accused has to rebut the\n       presumption underS.139, the standard of proof for doing so is that ofCrl.R.P.NoS.639 & 640 of 2022               13`preponderance of probabilities'. Therefore, if the accused is able to\n       raise a probable defence which creates doubts about the existence of a\n       legally enforceable debt or liability, the prosecution can fail. Accused\n       can rely on the materials submitted by the complainant in order to\n       raise such a defence and it is conceivable that in some cases the\n       accused may not need to adduce evidence of his/her own."14. In the decision reported in [2019 (1) KLT 598 (SC) :2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019\n\n(2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], Bir Singh v.Mukesh Kumar, the Apex Court while dealing with a case where\n\nthe accused has a contention that the cheque issued was a blank\n\ncheque, it was held as under:"A meaningful reading of the provisions of theNegotiable\n        Instruments Actincluding, in particular,Sections 20,87and139,\n        makes it amply clear that a person who signs a cheque and makes it\n        over to the payee remains liable unless he adduces evidence to rebut\n        the presumption that the cheque had been issued for payment of a\n        debt or in discharge of a liability. It is immaterial that the cheque\n        may have been filled in by any person other than the drawer, if the\n        cheque is duly signed by the drawer. If the cheque is otherwise valid,\n        the penal provisions ofS.138would be attracted. If a signed blank\n        cheque is voluntarily presented to a payee, towards some payment,\n        the payee may fill up the amount and other particulars. This in itselfCrl.R.P.NoS.639 & 640 of 2022                14would not invalidate the cheque. The onus would still be on the\n        accused to prove that the cheque was not in discharge of a debt or\n        liability by adducing evidence."15. In a latest 3 Bench decision of the Apex Court reported\n\nin [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD\n\n527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC\n\n283 : 2021 (1) KLT OnLine 1132], Kalamani Tex (M/s.) & anr. v.\n\nP.Balasubramanian the Apex Court considered the amplitude of\n\npresumptions underSections 118and139of the N.I Act it was held\n\nas under:"Adverting to the case in hand, we find on a plain reading of\n           its judgment that the Trial Court completely overlooked the\n           provisions and failed to appreciate the statutory presumption drawn\n           underS.118and S.139of NIA. The Statute mandates that once the\n           signature(s) of an accused on the cheque/negotiable instrument are\n           established, then these `reverse onus' clauses become operative. In\n           such a situation, the obligation shifts upon the accused to discharge\n           the presumption imposed upon him. Once the 2nd Appellant had\n           admitted his signatures on the cheque and the Deed, the Trial Court\n           ought to have presumed that the cheque was issued as consideration\n           for a legally enforceable debt. The Trial Court fell in error when it\n           called    upon    the   Complainant-Respondent      to   explain   theCrl.R.P.NoS.639 & 640 of 2022              15circumstances under which the appellants were liable to pay....................18.       Even if we take the arguments raised by the\n           appellants at face value that only a blank cheque and signed blank\n           stamp papers were given to the respondent, yet the statutory\n           presumption cannot be obliterated. It is useful to citeBir Singh v.\n           Mukesh Kumar(2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1)\n           KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC\n           2446 : 2019 CriLJ 3227], P.36., where this Court held that:"Even a blank cheque leaf, voluntarily signed\n                and handed over by the accused, which is towards\n                some payment, would attract presumption underS.139of the Negotiable Instruments Act, in the\n                absence of any cogent evidence to show that the\n                cheque was not issued in discharge of a debt."16. Thus the law is clear on the point that when the\n\ncomplainant discharged the initial burden to prove the transaction\n\nled to execution of the cheque, the presumption underSections 118and139of the N.I Act would come into play. No doubt, these\n\npresumptions are rebuttable and it is the duty of the accused to\n\nrebut the presumptions and the standard of proof of rebuttal is\n\nnothing but preponderance of probabilities.Crl.R.P.NoS.639 & 640 of 2022       1617. It has been settled in law that the accused can either\n\nadduce independent evidence or rely on the evidence tendered by\n\nthe complainant to rebut the presumptions. In this case, no\n\nevidence available to rebut the presumption as rightly found by the\n\ncourts below. Therefore, the conviction requires no interference.18. Coming to sentence, the same requires modification.19. In the result:(i)    These Revision Petitions are allowed in part;(ii) The conviction imposed by the trial court in both cases\n\nstands confirmed;(iii) The sentence imposed by the courts below stands\n\nmodified as under:(a)    In    S.T.No.3085/2017, the revision petitioner/accused\n\nshall undergo simple imprisonment for a day till rising of the court\n\nfor the offence underSection 138of the N.I Act and also to pay\n\nfine of Rs.1,32,960/- (Rupees One lakh thirty two thousand nine\n Crl.R.P.NoS.639 & 640 of 2022       17\n\n\n\n\nhundred sixty only). In default of payment of fine, the revision\n\npetitioner shall undergo default imprisonment for a period of four\n\nmonths. Fine shall be given to the complainant as compensation\n\nunder Section 357(1)(b) of Cr.P.C;(b)    In    S.T.No.2850/2017, the revision petitioner/accused\n\nshall undergo simple imprisonment for a day till rising of the court\n\nfor the offence underSection 138of the N.I Act and also to pay\n\nfine of Rs.25,000/- (Rupees Twenty five thousand only). In default\n\nof payment of fine, the revision petitioner shall undergo default\n\nimprisonment for a period of one month. Fine shall be given to the\n\ncomplainant as compensation under Section 357(1)(b) of Cr.P.C;(c) Considering the request of the accused/revision petitioner,\n\nsix months' time from today is granted to pay the compensation;(d) Therefore, the revision petitioner is directed to appear\n\nbefore the trial court on or before 29.03.2023 to undergo the\n\nmodified sentence and to pay fine. In default to do so, the trial\n Crl.R.P.NoS.639 & 640 of 2022     18\n\n\n\n\ncourt is directed to execute the sentence as per law without fail;(e) The execution of the sentence shall stand deferred till\n\n28.03.2023.Sd/-(A. BADHARUDEEN, JUDGE)\nrtr/