Shaju.V.P vs Shelby Joy

A. Badharudeen, J

Revision Petitioner is the sole accused in S.T.No.343/2018 on the file of the Additional Chief Judicial Magistrate Court, Thrissur. Revision petitioner assails conviction and sentence imposed by the Additional Chief Judicial Magistrate in the above case as per judgment dated 12.10.2021, whereby the revision petitioner was sentenced to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs.2,80,000/- to the complainant under Section 357(3) Cr.P.C for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the `N.I Act' for short). In default of payment of compensation, the revision petitioner was sentenced to undergo simple imprisonment for a period of 3 months.

The revision petitioner assailed the conviction and sentence before the Sessions Court, Thrissur, by preferring appeal. The learned First Additional Sessions Judge considered Crl.Appeal No.161/2021 and as per judgment dated 10.08.2022, confirmed the conviction and modified the sentence to imprisonment till rising of court and to pay compensation, while confirming the payment of compensation as well as the default sentence as such.

The 1st respondent herein is the original complainant before the court below and the 2nd respondent is the State of Kerala.

I would like to refer the parties in this Revision Petition as the `complainant' and `accused' for easy discussion.

Heard the learned counsel for the revision petitioner on admission and the learned Public Prosecutor. Notice to the 1st respondent, the complainant, stands dispensed with.

The prosecution case emanated when the complainant filed complaint before the trial court alleging commission of offence punishable under Section 138 of the N.I Act on the allegation that cheque for Rs.5 lakh dated 24.02.2016 issued by the accused for return of the said sum borrowed from the complainant was dishonoured. Though legal notice was issued and the amount was demanded back, the accused did not care to repay the amount.

During trial, the trial court examined PW1 and PW2 and marked Exts.P1 to P7 on the side of the complainant. Though opportunity was given to the accused to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, no defence evidence adduced.

While challenging the concurrent findings of conviction entered into by the trial court as well as the appellate court, it is pointed out by the learned counsel for the accused/revision petitioner that there was no money transaction between the accused and the complainant and the courts below failed to take note of the said fact. Further the complainant failed to prove his source of income.

In this context, I am inclined to refer the 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 fact, nothing argued to substantiate interference of this Court by exercising the power of revision apart from reiterating the contentions before the trial court. In this matter, the courts below entered into conviction relying on the evidence of PW1, the complainant, to the effect that the accused borrowed Rs.5 lakh from him as loan and for repayment of the said amount, Ext.P1 cheque was issued. He deposed about the presentation of the cheque, its dishonour, issuance of legal notice and its acceptance by the accused. He also stated that the accused did not pay the amount. Though the contention as to source of the complainant was raised before the appellate court, the appellate court found that the evidence of PW1 is trust-worthy and, therefore, there is no need to establish the source of income. It is noted by the trial court as well as the appellate court that PW2, who is none other than the earlier counsel for the complainant, also reiterated that the evidence of PW1 in the matter of issuance of Ext.P1 cheque in consequence of an agreement entered into between the complainant and the accused.

In cases involving allegation of offence punishable under Section 138 of the N.I Act, the case of the complainant is safeguarded by the twin presumptions under Sections 118 and 139 of the N.I Act. In this context, I am inclined 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 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. In the case on hand, it could be noticed that the courts below concurrently entered into conviction. The appellate court modified the sentence. Therefore, conviction does not require any interference.

In the case on hand, nothing substantiated to revisit the conviction entered into by the trial court and the appellate court. Therefore, the conviction does not require any interference.

In this matter, in the matter of sentence, both the courts below ordered compensation under Section 357(3) of Cr.P.C for the offence punishable under Section 138 of the Negotiable Instruments Act. As per Section 64 of the IPC, in every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable [with imprisonment or fine, or] with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. In the decision reported in [2013(4) KHC 163 : 2013 (4) KLT 350 : 2014 ACD 47 : 2014 CriLJ 179 : AIR 2014 SC 771 : 2013 (16) SCC 465], Somnath Sarkar v. Utpal Basu Mallick & anr. while dealing with provisions to levy fine in offences under Section 138 of the N.I Act, it has been observed thus:

“First and foremost is the fact that the power to levy fine is circumscribed under the statute to twice the cheque amount. Even in a case where the Court may be taking a lenient view in favour of the accused by not sending him to prison, it cannot impose a fine more than twice the cheque amount. That statutory limit is inviolable and must be respected. It is only when the Court has determined the amount of fine that the question of paying compensation out of the same would arise. This implies that the process comprises two stages. First, when the Court determines the amount of fine and levies the same subject to the outer limit, if any, as is the position in the instant case. The second stage comprises invocation of the power to award compensation out of the amount so levied. The High Court does not appear to have followed that process. It has taken payment of Rs.80,000/- as compensation to be distinct from the amount of fine it is imposing equivalent to the cheque amount of Rs.69,500/-. That was not the correct way of looking at the matter. Logically, the High Court should have determined the fine amount to be paid by the appellant, which in no case could go beyond twice the cheque amount, and directed payment of compensation to the complainant out of the same.”

In view of the legal position, sentence stands modified accordingly.

In the result:

(i) This Revision Petition is allowed in part;

(ii) The conviction imposed by the trial court as well as the appellate court stands confirmed;

(iii) The sentence stands modified as under:

(a) The revision petitioner/accused shall undergo simple imprisonment for a day till rising of court and to pay fine of Rs.2,80,000/- (Rupees Two lakh eighty thousand only). In default of payment of fine, the revision petitioner shall undergo default imprisonment for a period of three months. Fine shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C.

(b) Considering the request of the accused/revision petitioner, 3 months' time from today is granted to pay the compensation.

(c) Therefore, the revision petitioner is directed to appear before the trial court on or before 13.01.2023 to undergo the modified sentence and to pay fine. In default to do so, the trial court is directed to execute the sentence as per law without fail.

(d) The execution of the sentence shall stand deferred till 12.01.2023.