P.R. Sugasree 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 C.C.No.100/2017 on the file of the Judicial First Class Magistrate Court-II, Wadakkanchery, arraying the original complainant as the 2nd respondent and State of Kerala as the 1st respondent.

The revision petitioner impugns judgment in C.C.No.100/2017 dated 29.09.2021 on the file of the Judicial First Class Magistrate Court-II, Wadakkanchery and the judgment in Criminal Appeal No.167/2021 dated 03.08.2022 on the file of the Additional Sessions Court, Thrissur arising therefrom.

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:

The complainant launched prosecution alleging commission of offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as 'NI Act', for short) by the accused, when cheques for a total sum of Rs.1,43,500/- (cheque dated 20.04.2009 for Rs.50,000/-, cheque dated 05.05.2009  for  Rs.50,000/-  and  cheque  dated 25.05.2009 for Rs.43,500/-) got dishonoured, when the same were presented for collection with endorsement, 'Payment Stopped by Drawer'. Though the complainant demanded the amount covered by the above cheques, the accused failed to repay the same and send reply notice raising untenable contentions.

The trial court proceeded with trial. During trial, PW1 was examined and Exts.P1 to P8 were marked on the side of the complainant.

On completion of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and provided opportunity to adduce defence evidence. Accordingly, DW1 and DW2 were examined and marked Exts.D1 to D31(a) on the side of the accused.

The trial court appraised the evidence. The main contention raised by the accused before the trial court was that, the cheques were not given to discharge any legally enforceable debt, but only towards security. In support of this contention, Ext.D8 covering letter had been pressed into before the trial court. Similarly, it was contended before the trial court that no debt was existing when the cheque was presented for collection since the accused had paid full amount covered by the cheques, at the time of presentation of the cheque. The trial court appraised this contention relying on the available evidence and held that the accused failed to substantiate the said contention.

It is relevant to note that the contention raised by the accused and as pointed out by the learned counsel for the accused herein also, is that after dishonour of the cheques, the accused paid the amount covered by the cheques. In fact, the said contention was not established. Once, the accused raised a contention that he had repaid the amount on getting notice, the same is plea of discharge. In a case, where the accused raises plea of discharge, all other contentions disputing the liability, execution of the cheque, etc., could not have any significance and it is the duty of the accused to prove the plea of discharge.

In the appeal also, similar contention was raised. The appellate court found that the complainant took a consistent stand right from the very beginning, as could be read out from Exts.D1 and D2 relied upon by the accused. It was observed that as per Ext.D1 dated 28.01.2009, the registration charge of Rs.1,14,735/-, association fees of Rs.20,000/-and an amount of Rs.17,500/- with respect to a dishonoured cheque, were claimed with respect to Flat B7. In Ext.D2 notice dated 20.02.2009, Rs.1,14,735/- was claimed towards the registration expenditure and Rs.20,000/- was claimed towards association fees on account of Flat B7.

On appreciation and re-appreciation of evidence, the trial court as well as the appellate court found that the contention raised by the accused, herein above referred, was miserably failed to be established. Accordingly, the courts below believed the evidence of PW1 supported by Exts.P1 to P8 to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Exts.P2, P2(a) and P2(b) cheques by the accused for the consideration shown therein. Accordingly, both courts below given benefit of presumption in favour of the respondent.

The trial court found that the accused committed offence punishable under Section 138 of the NI Act. Accordingly, the accused was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,43,500/-. Fine was ordered to be paid as to the compensation to the capital. In dafault of payment of compensation, the accused was sentenced to undergo simple imprisonment for a period of four months. In the appeal, the appellate court modified the substantive sentence for a day, till rising of the court, while maintaining the sentence to pay fine of Rs.1,43,500/- and to undergo default imprisonment for four months.

In this case, though the learned senior counsel argued to unsettle the concurrent verdicts, by reiterating the same contentions, in fact, the said contentions found to be not sustainable. Although, it is argued that the amount of the cheque was paid earlier, the learned counsel fairly submitted that the said contention could not be established by the available evidence. Thus, the plea of discharge not at all proved.

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.

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 matter, the trial court as well as the appellate court correctly appreciated and re-appreciated the evidence and came to the conclusion that the evidence available established commission of offence punishable under Section 138 of NI Act by the accused and, accordingly, the accused was convicted.

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.

However, the revision petitioner/ accused is directed to appear before the trial court on 07.01.2023 to undergo the sentence and to pay fine.

In default to do so, the trial court is directed to execute the sentence as per law without fail. Till 07.01.2023, the execution of the sentence shall stand deferred.

Registry is directed to forward a copy of this order to the Judicial First Class Magistrate Court-II, Wadakkanchery, for information and compliance.