Habeebu Rahman vs State Of Kerala

A.Badharudeen, J

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.2106 of 2016 on the files of the Special Judicial First Class Magistrate (NI Act cases), Kozhikode. The respondents herein are the original complainant as well as the State of Kerala.

The revision petitioner impugns judgment in S.T.No.2106 of 2016 dated 30.11.2019 and the judgment in Crl.Appeal No.437 of 2019 dated 03.11.2020 on the file of the II Additional Sessions Court, Kozhikode.

Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor on admission. Notice to the second respondent/the original complainant stands dispensed with.

I shall refer the parties in this Revision Petition as ‘complainant’ and ‘accused’ for convenience.

Summary of the case put up by the complainant before the trial court is as under:

According to the complainant, on 27.04.2016, the accused borrowed Rs.4,00,000/- and in discharge of the said liability, he had issued cheque dated 10.06.2016 drawn on the State Bank of Travancore, Kondotty Branch on the assurance of encashment. When the cheque was presented for collection, the same returned unpaid. Thereafter, legal notice was issued. Since no repayment even after receipt of notice, complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter will be referred as NI Act for convenience) was initiated before the Magistrate Court.

The trial court secured the presence of the accused for trial and during trial, PW1 examined and Exts.P1 to P5 series were marked on the side of the complainant.

After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced.

The trial court appreciated the evidence and finally, found that the accused herein committed offence punishable under Section 138 of the NI Act and accordingly, he was convicted and sentenced to pay fine of Rs.4,00,000/-. In default of payment of fine, default imprisonment for a period of three months was ordered.

The accused challenged the above conviction before the Sessions Court, Kozhikode vide Crl.Appeal No.437 of 2019. The learned Sessions Judge on re-appreciation of evidence also concurred the finding of the trial court.

The concurrent verdicts of the trial court as well as the appellate court are under challenge in this revision petition. While attempting to upset the concurrent verdicts, the learned counsel for the accused argued that the courts below failed to take note of the fact that there was no legally enforceable debt and the complainant failed to prove the transaction led to execution of the cheque. Nothing more is argued. In fact, the contentions now advanced before this Court can be addressed only by re-appreciation of evidence. However, the said power is not available to this Court, while exercising the power of revision.

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 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. ...”

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.”

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.

In this matter, the trial court as well as the appellate court given credence to the evidence of PW1 and Exts.P1 to P5 series to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque.

The  trial  court  appraised  the  contention raised by the accused during cross-examination of PW1 that there was an agreement between the accused the complainant for renovation of the building of the complainant, by the accused. The total cost of the work was Rs.40 lakh and accordingly, cheque for Rs.4,00,000/-was issued being 10% of the total cost towards security. But when the work was completed, Rs.8,87,000/- was due from the complainant to the accused and therefore, Ext.P1 cheque had no consideration. In fact, the said contention was negatived for want of evidence. The appellate court also considered the contention and found against.

In this case, the courts below found that the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque and thereby, the benefit of presumptions was given to the complainant. Law regarding presumptions is also settled as well.

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 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.”

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 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.”

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.

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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 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.”

Thus the law is clear on the point that when the complainant discharges 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.

In this matter, nothing established to upset the concurrent verdicts in any manner. Therefore, the revision is liable to be dismissed. Faced with the situation, the learned counsel for the accused sought for six months time to pay the fine amount. Since the fine amount would come to Rs.4,00,000/- and in consideration of the fact that the transaction was in the year 2016, I am inclined to grant three months time to the accused from today to pay the compensation.

In the result, this revision petition fails and it is, accordingly, dismissed.

However, the revision petitioner/the accused is given time for three months from today to pay the compensation or to undergo the default sentence. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 09.02.2023 to pay the compensation or to undergo the default sentence. The execution of the sentence shall stand deferred till 08.02.2023.

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.