Kerala High Court
O.Sivasankaran vs State Of Kerala And Another on 24 May, 2022
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
CRL.REV.PET NO. 4004 OF 2010
CRL.APPEAL NO.170/2010 OF ADDITIONAL SESSIONS COURT
(ADHOC)-I, PALAKKAD
ST 4023/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, OTTAPPALAM
REVISION PETITIONER/APPELLANT/ACCUSED:
O.SIVASANKARAN,
S/O.KRISHNAN NAIR,
ORAVIL VEETTIL, MANGALAM,
LAKKIDI DESOM, OTTAPALAM TALUK.
BY ADV DR.GEORGE ABRAHAM
RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 K.P.RAJEEV,
KURIAYATTUPARAMBIL
KAYILIYAD DESOM, CHALAVARA VILLAGE,
OTTAPALAM TALUK.
R1 BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Crl.R.P.No.4004 of 2010 ..2..
ORDER
This Crl.R.P. has been filed challenging the conviction and sentence dated 27.2.2010 passed by the Judicial First Class Magistrate Court, Ottappalam (for short 'the trial court') in S.T.No.4023/2008 which is later confirmed by the judgment dated 27.7.2010 in Crl.Appeal No.170/2010 on the file of the Additional Sessions Court-I, Palakkad (for short 'the appellate court').
2. The revision petitioner is the accused and the 2 nd respondent is the complainant in S.T.No.4023/2008. The 2 nd respondent filed a private complaint at the trial court alleging that the revision petitioner has committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act). According to the 2 nd respondent, in connection with business transaction between him and the revision petitioner, a sum of Rs.34,000/- was due to him by the revision petitioner and in discharge of the said liability, Exts.P1 and P2 cheques for a sum of Rs.17,000/- each were issued. The cheques on presentation at the Bank were returned as dishonoured for the reason 'insufficiency of funds'.
Crl.R.P.No.4004 of 2010 ..3..
Notice under Section 138(b) of the N.I.Act was issued. But there was no compliance. It was in this circumstance, the private complaint was filed.
3. The complainant gave evidence as PW1 at the trial court. Exts.P1 to P8 were marked on his side. No defence evidence was adduced. After trial, the trial court found that the accused has committed the offence punishable under Section 138 of the N.I.Act and accordingly he was convicted for the said offence. He was sentenced to undergo simple imprisonment for a period of two months and to pay a fine of Rs.10,000/- under Section 138 of the N.I.Act. In default of payment of fine, he was directed to undergo simple imprisonment for a further period of one month. The accused challenged the said judgment before the appellate court. The appellate court dismissed the appeal.
4. I have heard Dr.George Abraham, the learned counsel for the revision petitioner and Sri.M.P.Prasanth, the learned Public Prosecutor for the 1st respondent. Even though notice has been served to the 2nd respondent, there is no appearance.
Crl.R.P.No.4004 of 2010 ..4..
5. The learned counsel for the revision petitioner submitted that the 2nd respondent has miserably failed to prove the transaction and the issuance of the cheques. The learned counsel further submitted that the evidence of PW1 itself would show that the transaction was actually between the 2nd respondent and one Lotus Match Factory, Sivakasi.
6. It is true that, in the complaint, the details of the business transaction has not been clearly mentioned. The evidence on record would show that the 2 nd respondent was conducting a Match Manufacturing unit. PW1 deposed that the accused worked as a commission agent of his business. It is more or less admitted by the revision petitioner in his statement filed under Section 313 of the Cr.P.C. PW1 stated in the cross-examination that he sent goods worth Rs.34,000/- to Lotus Match Factory at Sivakasi on credit basis and even though the accused collected that amount from them, he did not pay it to him, instead he issued Exts.P1 and P2 cheques. The case set up by the revision petitioner is that, he had acted as middlemen in the business deal between the 2 nd respondent and other companies including the one at Sivakasi. He has Crl.R.P.No.4004 of 2010 ..5..
also admitted that he stood as middlemen for the supply of goods of Lotus Match Factory at Sivakasi, but contended that since the said supplier did not pay the amount, the 2 nd respondent forcefully obtained two signed blank cheques from him which were misused and a false complaint was filed.
7. To prove the transaction, execution and issuance of the cheques, PW1 gave evidence. A negotiable instrument including a cheque carries a presumption of consideration in terms of Section 118(a) and under Section 139 of the N.I.Act. The presumption under Section 139 of the N.I.Act is a presumption of law as distinguished from the presumption of facts. The obligation on the prosecution will be discharged with the help of the presumption of law and presumption of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is mandate on presumption of consideration in terms of the provisions of the Act. The onus shifted to the accused on proof of issuance of cheques to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the N.I.Act.
Crl.R.P.No.4004 of 2010 ..6..
8. Coming to the evidence, as stated already, PW1 gave evidence that he supplied goods to the factory at Sivakasi through the revision petitioner and the revision petitioner collected amount from them but did not pay it to him and instead Exts.P1 and P2 cheques were issued. Thus, the cheques were issued for a legally enforceable debt. That apart, the revision petitioner does not dispute his signature in Exts.P1 and P2 cheques. His case is that he was compelled to issue blank cheques after putting his signature therein under the threat of the 2nd respondent. But there is nothing to substantiate the same. No reply notice was issued. Once the accused admitted the signature in Exts.P1 and P2 cheques, it can be presumed that the cheques were issued as consideration for a legally enforceable debt.
9. The Supreme Court in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446] has held 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 was also held that, even a blank cheque leaf, Crl.R.P.No.4004 of 2010 ..7..
voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the N.I.Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Recently, the Apex Court in Kalamani Tex and another v. P.Balasubramaniam [2021 (2) KHC 570] again held that, once the signature of an accused on the cheque is established, then reverse onus clause becomes operative and in such a situation, obligation shifts upon the accused to discharge the presumption imposed upon him.
10. Both the courts below concurrently believed the evidence of PW1 who deposed that the cheques were executed and issued by the accused towards the discharge of a legally enforceable debt. It is settled that the power vested with this Court under Section 397 of the Cr.P.C. is restricted and this Court under the exercise of the said jurisdiction cannot embark upon re-appreciation of the evidence. In Shlok Bhardwaj v. Runika Bhardwaj & others [2015 (2) SCC 721], the Apex Court has held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of the evidence.
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Since there are concurrent findings of the courts below, this Court shall be circumspect in invoking the revisional powers under Section 397 r/w 401 of the Cr.P.C. Only if the decision rendered by the two courts below can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. I have carefully gone through the entire records, evidence, proceedings and the judgments of the two courts below. I find no impropriety or illegality therein warranting interference on the finding of conviction under the exercise of revisional powers vested with this Court.
11. The courts below sentenced the accused to undergo rigorous imprisonment of two months and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for a further period of one month. Considering the facts and circumstances of the case, I am of the view that the substantive sentence of imprisonment can be modified to till rising of the court. However, the revision petitioner can be directed to pay compensation of Rs.40,000/- (Rupees Forty thousand only) to the 2 nd respondent under Section 357(3) of the Cr.P.C.
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12. In the result, the Crl.R.P. is allowed in part. The conviction passed by the courts below is sustained. The sentence is modified as follows:-
(i) The revision petitioner shall undergo simple imprisonment till rising of the court.
(ii) The revision petitioner shall pay compensation of Rs.40,000/- (Rupees Forty thousand only) to the 2nd respondent under Section 357(3) of the Cr.P.C.
(iii) The amount, if any, already deposited by the revision petitioner shall be adjusted towards the compensation payable.
(iv) The 2nd respondent shall be entitled to withdraw such amount, if any, deposited.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE skj