M.K.Abdurahman vs State Of Kerala

A. Badharudeen, J

This Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., by the sole accused in S.T.No.188/2010 on the file of the Judicial First Class Magistrate Court, Mattannur, arraying the original complainant as the 2nd respondent and State of Kerala as the 1st respondent.

Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor appearing for the 1st respondent.

I shall refer the parties in this revision as 'complainant' and 'accused' for easy reference.

The brief facts of the case put up by the complainant before the trial court is as under:

Consequent to dishonour of a cheque dated 20.07.2009 for Rs.5 lakh alleged to be issued by the accused to the complainant, in discharge of the said sum, alleged to be borrowed by the accused from the complainant during August, 2008, the complainant initiated prosecution alleging that the accused committed offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short).

In this case, the trial court examined PWs 1 and 2 and marked Exts.P1 to P6 on the side of the complainant.

When the accused was given opportunity to adduce defence evidence, after questioning him under Section 313(1)(b) of Cr.P.C., no defence evidence adduced.

The trial court appraised the evidence and finally found the accused guilty for the offence punishable under Section 138 of NI Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5 lakh and the fine  was  ordered  to  be  given  as  compensation to the complainant under Section 357(3) of Cr.P.C.  It  was  ordered  further  that  in  case  of default in payment of fine, the accused would undergo simple imprisonment for a further period of one month.

The   judgment   in   S.T.C.No.188/2010 dated 13.01.2014 was challenged before the Sessions Court, Thalassery. The learned Sessions Judge after re-appreciating the evidence confirmed the conviction while modifying the sentence. The appellate court directed the accused to pay compensation of Rs.5 lakh under Section 357(3) of Cr.P.C., as per judgment dated 02.12.2021. In case of default in payment of fine, the accused would undergo simple imprisonment for a further period of one month. It was ordered further that in addition to the compensation amount, the accused would pay complainant by way expenses incurred by Rs.1,00,000/-   to   the of  cost  to  meet  the her  under  Section  359(2) of Cr.P.C. and in default of that payment, the accused would undergo simple imprisonment for a further period of 30 days.

Thus, the concurrent findings of conviction and sentence imposed by the trial court and appellate court are under challenge in this revision petition.

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.

It is argued by the learned counsel for the revision petitioner that the courts below failed to consider the fact that there was no legally enforceable debt and the accused did not commit an offence punishable under Section 138 of NI Act. It is argued that the notice was issued in an incorrect address of the accused and thereby, it was returned with endorsement 'unclaimed'. Therefore, there was no statutory notice in this matter. The evidence of PWs1 and 2, supported by Exts.P1 to P6, were given emphasis by the courts below to enter into conviction. During cross-examination of PW1, the accused raised contention that the husband of the complainant, who was in inimical terms with the accused obtained two blank cheques of the accused and misused one among the cheques to lodge the present complaint.

In this matter, the trial court found that the accused had not given any explanation regarding execution of Ext.P6 agreement produced before the court and as per Ext.P6, it was categorically established that the accused borrowed Rs.5 lakh as contended by the complainant. It is noticed that the contention as to proper legal notice was not raised before the trial court. But before the appellate court, a slight mistake in the house name of the accused was pointed out to contend that because of incorrect address, the notice was returned 'unclaimed'. However, the appellate court was not inclined to accept the contention that there was no proper notice in this matter. Both courts categorically observed that the legal notice issued by the complainant returned with endorsement 'unclaimed'. That shows that the postman well identified the addressee and the addressee not showed interest to accept the same, thereby the postal article was returned. Thus it has to be held that the legal notice was not returned for the reason 'incorrect address'. Therefore, this contention cannot be appreciated.

Indubitably, in a prosecution alleging commission of offence punishable under Section 138 of the NI Act, once the complainant discharges his initial burden, twin statutory presumptions embodied under Sections 118 and 139 of the NI Act are available 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. 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], Kalamani Tex (M/s.) & 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 discharged the initial burden to prove the transaction led to execution of the cheque, the presumption under Sections 118 and 139 of the NI 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 case, as rightly found by the trial court as well as the appellate court the evidence of PWs1 and 2 read along with Exts.P1 to P6 categorically established the case put up by the complainant and thereby the courts below given benefit of presumptions under Sections 118 and 139 of the NI Act in favour of the complainant. Therefore, the conviction imposed by the courts below does not require any interference.

Coming to the sentence, the appellate court modified the sentence by imposing cost to the tune of Rs.1,00,000/-. In fact, Section 359(1) Cr.P.C. provides payment of cost in non-cognizable cases to adjust the cost incurred by the prosecution. However, it appears that the punishment for the offence under Section 138 of NI Act, would include payment of fine to the extent of twice the cheque amount. Therefore, it is better for the courts to confine the fine inclusive of the expenses without exceeding twice the amount of the cheque. Therefore, it is better to order payment of compensation in this manner.

The concurrent finding of the courts below in the matter of conviction as well as sentence is within the sweep of power of the courts and there is no illegality established, to interfere the same by exercising the power of revision. Therefore, this revision petition fails and is accordingly dismissed.

Since the learned counsel for the accused/revision petitioner sought one month time to pay the amount, the same is granted.

Therefore, the revision petitioner/the accused is directed to appear before the trial court on 09.12.2022 to undergo the sentence and to pay fine. Therefore, the execution of the sentence stands deferred till 08.12.2022. 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  forthwith  for information and compliance.