Mathew Varkey vs State Of Kerala

A. Badharudeen, J

This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for convenience), challenging judgment in S.T.No.91/2012 dated 19.02.2014 on the files of the Judicial First Class Magistrate Court-II, Thodupuzha and also in Crl.A.No.55/14 dated 10.08.2015 on the files of the Additional Sessions Court-III, Thodupuzha.

The revision petitioner is the sole accused in the above case. The respondents herein are the original complainant as well as State of Kerala.

Heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. No representation for the 2nd respondent though Adv.K.Sivakumar filed Vakalat for the 2nd respondent/original complainant.

I shall refer the parties in this revision petition as 'accused' and 'complainant', for convenience.

The brief facts of the case:

The specific case of the complainant-M/s.Sree Gokulam Chit and Finance Company (P) Ltd is that the accused herein, (Mathew Varkey) who stood as surety for a chitty prize availed by Sri.Devasia P.D., had issued cheque dated 11.07.2011 for Rs.1,98,059/- (Rupees one lakh ninety eight thousand and fifty nine only) towards repayment of the amount due under the chitty when the above said Devasia P.D. defaulted the payment of the chitty amount as agreed. The further case of the complainant is that when the above said cheque was presented for collection, the same got dishonoured for want of sufficient funds. Even though notice demanding the amount covered by the cheque was issued, the accused did not pay the amount. Accordingly, the complainant launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act' hereinafter).

Initially, the complaint was filed before the Chief Judicial Magistrate Court, Thodupuzha and the case got numbered as S.T.No.106/2012. Later, the same was transferred to Judicial First Class Magistrate Court-II, Thodupuzha and re-numbered as S.T.No.91/2012. The Judicial First Class Magistrate Court-II, Thodupuzha secured the presence of the accused for trial and tried the matter. During trial, PWs 1 to 3 were examined and Exts.P1 to P13 were marked on the side of the complainant.

On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence. Making use of the said opportunity, DWs 1 to 3 were examined Exts.D1 to D6 were marked on the side of defence.

However, on appreciation of evidence, after hearing both sides, the learned Magistrate found that the accused committed offence punishable under Section 138 of the NI Act. Accordingly, he was sentenced to undergo simple imprisonment for four months and to pay fine of Rs.1,98,059/- for the offence punishable under Section 138 of the NI Act. Fine was ordered to be paid as compensation to the complainant under Section 357(1) of Cr.P.C. and default sentence for a period of three months also was imposed.

Aggrieved by the judgment of the Judicial First Class Magistrate Court-II, Thodupuzha, the revision petitioner filed appeal before the Additional Sessions Court, Thodupuzha and on re-appreciation of evidence, the learned Additional Sessions Judge modified the sentence to payment of fine of Rs.1,98,059/-and imposed three months default imprisonment, on failure to pay fine.

Thus, the concurrent verdicts of conviction imposed by the trial court as well as the appellate court and the modified sentence imposed by the appellate court are under challenge in this revision petition. The specific case of the complainant before the courts below was that the accused stood as surety for a chitty transaction in relation to Sri.Devasia P.D. and he had issued Ext.P8 cheque to discharge liability to the tune of Rs.1,98,059/- outstanding in the said chitty. According to the accused, he never stood as a surety in relation to a chitty transaction pertaining to Sri.Devasia P.D. But the specific case of the accused is that Ext.P8 cheque was given as security in the year 2006 to the company at the time when his sister, Smt.Mercy Devasia, who had chitty transaction with the company, availed chitty prize. The further case of the accused was that Smt.Mercy Devasia had cleared the entire liability and as such, no legally enforceable debt to be realised from the accused acting on the security cheque issued in relation to the chitty transaction during 2006 at the instance of Smt.Mercy Devasia.

The learned counsel for the accused/revision petitioner reiterated the said contention and he relied on the evidence of DW1 to DW3 and Exts.D1 to D6 to substantiate the case of the accused.

In fact, this contention was raised before the trial court, relying on the evidence of DWs 1 to 3 and D1 to D6. DW1 examined is none other than the accused and he deposed before the trial court in tune with his case. DW2, Smt.Mercy Devasia, examined before the trial court deposed before the court that the accused herein stood as surety in connection with chitty transaction for DW2 as well as for her husband, Sri.P.D. Devasia and he is the brother-in-law of the accused. Ext.D3 is the cheque signed by Smt.Mercy Devasia (DW2) and Ext.D4 is the postal acknowledgment card signed by her. During cross-examination, DW2 given evidence that she did not send any reply to the notice received in S.T.58/2008, wherein it was specified that her surety was Sri.P.D.Joseph. Sri.P.D.Joseph was examined as DW3 and he also deposed that he stood as surety for his brother Sri.P.D.Devasia and he was not a surety for any other person for the chitty with the complainant. The trial court discussed the evidence in paragraph Nos.13 to 19 and negatived the defence case put up by the accused. Even though the said contention was raised by the appellate court, the appellate court also negatived the contention.

In this case, from the side of the complainant, apart from the cheque, guarantee agreements dated 01.02.2006 and 24.02.2006 and debt acknowledgment letter dated 01.02.2006 also were let in evidence to show that the complaint herein stood as surety for the chitty transaction with Sri.P.D.Devasia and therefore, the case put up by the accused contending that he had issued Ext.P8 cheque towards security for the chitty transaction of Sri.P.D.Devasia was found against. It is relevant to note that though the accused had a contention that Ext.P8 cheque was issued during 2006 towards security to the chitty pertaining to one Mercy Devasia (Wife of Sri. Devasia P.D.), no convincing evidence forthcoming why Ext.P8 cheque allegedly issued by the accused was not taken back. In this connection, the evidence of DW2 (Smt.Mercy Devasia) assumes significance. Her evidence is hat the accused stood as surety for the chitty transaction pertaining to Sri.Devasia P.D. and DW2. Thus, the evidence of DW1 negatives the case of the accused. In fact, nothing is substantiated in this matter to hold that the finding of the trial court as well as the appellate court in this regard is perverse and illegal to have interference by exercising 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. Decisions reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda, are on this point.

In this case, the evidence of Pws1 to 3 supported by Exts.P1 to P13, categorically established the transaction as well as execution of the cheque, as contended by the complainant and the courts below given benefit of twin presumptions in favour of the complainant accordingly.

No doubt, law regarding presumptions under Sections 118 and 139 of the N.I. Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions 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. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions. See decisions reported in [2010 (2) KLT 682 (SC)], Rangappa v. Mohan; [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, [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], Kalamani Tex (M/s.) & anr. v. P.Balasubramanian. In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above.

For the above reasons, this revision petition must fail and is accordingly, dismissed.

Since the transaction is of the year 2007, I am inclined to grant one month time from today to the accused to pay the compensation and therefore, execution of the sentence shall stand deferred till 04.09.2023 and the accused is directed to appear before the trial court on 05.09.2023, either to pay the fine amount or to undergo the default sentence.

In default to do so, the trial court is directed to execute the sentence as per law without fail.

Registry is directed to forward a copy of this order to the trial court for information and compliance.