Philip Mendez V.L vs Dr Jubin Thomas

A. Badharudeen, J

This Revision Petition has been filed by the sole accused in C.C.No.1462/2016 on the file of the Judicial First Class Magistrate Court, Njarakkal arraying the original complainant as the 1st respondent and State of Kerala as the 2nd respondent.

Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor.

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

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

The complainant raised contention that after cancellation of a lease deed entered into between the complainant and accused on 20.02.2011, for the return of an amount of Rs.3 lakh given as advance at the time of execution of the lease deed, the accused issued cheque dated 10.03.2012 drawn on Federal Bank Limited for the said sum with the assurance of encashment. When the cheque was present for collection, the same was dishonoured for want of funds. Thereafter, legal notice was issued to the accused intimating the dishonour and demanding payment of the cheque amount. Although notice was accepted by the accused, he did not pay the amount and thus prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act by the accused was launched before the trial court.

The trial court took cognizance in this matter and issued summons to the accused. After securing the presence of the accused, the trial court ventured the matter.

During trial, PWs 1 to 3 were examined and Exts.P1 to P13 were marked. Ext.D1 marked on the side of the accused, though no oral evidence adduced on behalf of the accused.

It is argued by the learned counsel for the accused that Ext.P1 cheque lacks consideration and it was issued under threat from Police, Aluva, since the father of the complainant is a police officer. While admitting the rental agreement between the accused and complainant, the learned counsel for the accused submitted that the accused effected modification in the building to suit the same to run a dental clinic with consent of the complainant and he incurred Rs.1.8 lakh for the same.

The trial court as well as the appellate court given much emphasis to evidence given by PW1, supported by PWs 2 and 3 and Exts.P1 to P13 to justify the conviction. It is relevant to note that Ext.P8 produced in this case is the judgment in O.S.No.323/2012 on the file of Sub Court, North Paravur whereby civil suit filed by the complainant to release the cheque amount was decreed. The trial court as well as the appellate court considered the evidence of PW1 espousing the transaction led to execution of Ext.P1 after cancellation of the rent deed. Since it is found that no anomaly in the evidence of PW1, supported by evidence of PWs 2 and 3, who are the Branch Managers of SBI, Cherai branch and Federal Bank, Aluva branch respectively to prove Ext.P2, the dishonour memo.

No challenge raised as regards the compliance of statutory mandates in this matter.

It is true that Ext.D1 was produced from the side of the accused to substantiate that the building construction was not completed at the time of rental agreement. The appellate court considered the impact of Ext.D1 in paragraph 18 of the judgment and found against the accused. For clarity, paragraph 18 of the appellate judgment is extracted here under:

It is true that the accused produced Ext.D1, partial occupancy certificate dated 10.02.2012. From Ext.D1 it is not clear whether the construction of the room agreed to be rented out to the complainant was completed and fit for occupation on the date of Ext.D1. Ext.D1 contains only a statement to the effect that construction site of the proposed building was inspected by the Municipal Engineer and that the work executed partially is in accordance with the permit and the building is now fit for occupation. In Ext.D1 the portion of building shown as fit for occupation is 11.68 meter square, which will come to only 125.72 square feet whereas the area of the room agreed to be rented out to the complainant was 500 square feet. Therefore, mere production of Ext.D1 partial occupancy certificate will not in any way help the accused to prove that there was no breach of Ext.P7 agreement by him. On the other hand, Ext.D1 only substantiates the contention of the complainant that the accused could not perform the condition undertaken by him in Ext.P7 least agreement which resulted in its cancellation and execution of Ext.P1 cheque in favour of the complainant. Therefore, from the evidence of PW1 and from Exts.Pl to P13 it can be safely concluded that the accused issued. Ext.P1 cheque to the complainant towards the discharge of the advance amount received by him as per Ext.P7 sale agreement.

In fact, no evidence adduced to substantiate that Ext.P1 lacks consideration or it was issued under threat from Police, Aluva. No evidence also let in by the accused to prove that he had made any complaint in this regard to any higher officials in the police.

Thus, it has to be observed that the trial court as well as the appellate court found that the complainant had succeeded in establishing the transaction led to execution of Ext.P1 cheque could avail the benefit of presumptions under Section 118 and 139 of Negotiable Instruments Act.

On  appreciation  of  the  evidence,  the trial court convicted and sentenced the accused to undergo simple imprisonment for a period of two months and to pay compensation of Rs.3,00,000/- to the complainant under Section 357(1) of Cr.P.C and in default of payment of compensation, to undergo simple imprisonment for a period of 20 days. On appeal, the learned Sessions Judge also confirmed the said conviction and sentence on re-appreciation of the evidence.

Though the learned counsel for the revision petitioner argued to unsettle the concurrent verdicts entered into by the trial court as well as the appellate court and when the said attempt failed, finally learned counsel for the revision petitioner/accused preferred for modification of sentence.

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 or fundamental violation of the principle of law, then only the power of revision would be made available.

In this case, as I have already pointed out, the trial court as well as the appellate court rightly appreciated the evidence given by PWs 1 to 3, supported by Exts.P1 to P13 to prove that the accused herein issued Ext.P1 cheque towards the advance amount received at the time of execution of Ext.P7 rental agreement. It was also found by the courts below that the contention as to issuance of Ext.P1 cheque under threat from Police, Aluva also not proved.

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.

…................

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 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. However, in this matter the appellant miserably failed to rebut the presumptions.

Thus, it appears that there is no patent illegality in the concurrent findings entered into by the trial court as well as the appellate court after appreciating and re-appreciating the evidence. Therefore, the conviction entered into by the trial court as well as the appellate court does not require any interference.

Coming to the sentence, the trial court imposed simple imprisonment for a period of two months and to pay a fine of Rs.3 lakh to the complainant as compensation. Default imprisonment for a period of 20 days also was imposed on failure to pay the compensation.

In the interest of justice and as canvassed by the learned counsel for the revision petitioner in the matter of modification of sentence, I am inclined to modify the sentence.

In the result, this revision petition is allowed in part. The conviction imposed by the trial court as well as the appellate court stands confirmed. The sentence stands modified as under:

The revision petitioner/accused shall undergo simple imprisonment for a period of one day till the rising of the court and to pay a fine of Rs.3 lakh under Section 357(1)(b) of Cr.P.C and the fine shall be paid to the complainant as compensation. In dafault of payment of fine, the revision petitioner/ accused shall undergo default imprisonment for a period of three months.

The learned counsel for the revision petitioner though failed in substantiating any illegality or impropriety in the conviction, lastly, sought time for paying the compensation.

It appears that this is a transaction in the year 2011. Therefore, I am inclined to grant three months' time to the revision petitioner to pay the fine and the execution of the modified sentence shall stand deferred till then.

Therefore, the revision petitioner/ accused is directed to appear before the trial court on 22.12.2022 to undergo the modified sentence. On failure, to do so, the trial court is directed to execute the modified sentence as per law.