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KERALA HIGH COURT
Sophy Thomas, J.
P.K. Uthuppu – Petitioner
versus
N.J. Varghese and Anr. – Respondents
Crl.Rev.Pet.No.1374 of 2010
Decided on 7.11.2023
(A) Criminal Procedure Code, 1973 – Section 401 read with Section 397 – Revisional jurisdiction – High Court while exercising revisional jurisdiction under Section 401 read with Section 397 of Cr.P.C. is exercising its supervisory jurisdiction for correcting miscarriage of justice, after verifying correctness, legality or propriety of finding sentence or order of courts below, and neither it can be equated with power of an appellate court, nor it can be treated as a second appellate jurisdiction – Limited power under revisional jurisdiction is to do justice in accordance with principles of criminal jurisprudence and it would not be appropriate for High Court to re-appreciate evidence and to enter into a contra finding based on its own conclusions, unless there is any glaring feature brought to notice of court which would tantamount to gross miscarriage of justice. (Para 9)
(B) Negotiable Instruments Act, 1881 – Sections 138 and 139 – Criminal Procedure Code, 1973 – Section 357 – Dishonour of cheque – Conviction and sentence – Revision petitioner failed to show that cheque was issued as a security for vehicle loan availed by him from financial institution of 1st respondent – Even if cheque was given as a blank one, affixing his signature only then also revision petitioner cannot disown the same as he has no case that he had given that cheque under any threat or coercion – As payment is proved only presumption is that cheque was issued towards discharge of debt – Revision petitioner failed to adduce any cogent evidence to show that cheque given by him was not towards discharge of any legally enforceable debt – Presumption under Section 139 of N.I Act is very much available to 1st respondent – If fine amount is realised, it will be paid to 1st respondent as compensation under Section 357(1) of Cr.P.C. – Revision petition dismissed. (Paras 16, 17, 24 and 25)
(C) Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Dishonour of cheque – Mode of advancing amount to revision petitioner, was not an incriminating material to be confronted with revision petitioner during his 313 examination, as long as he was not disputing cheque bearing his signature, and dishonour of that cheque for insufficiency of funds – Discrepancy in statement of PW1 regarding mode of payment of amount to revision petitioner may be a circumstance available to revision petitioner, to challenge genuineness of transaction alleged by 1st respondent – It cannot be treated as an incriminating circumstance brought out against revision petitioner to be put in his examination under Section 313 of Cr.P.C. (Para 21)
Result: Criminal revision petition dismissed.
ORDER
This revision is at the instance of the accused in CC No.717 of 2006 on the file of Judicial Magistrate of First Class, Kothamangalam, assailing the judgment in Crl.Appeal No.213 of 2009 on the file of Additional Sessions Judge (Adhoc-I), Ernakulam, which upheld his conviction under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the N.I Act’), though the substantive sentence was reduced to one day till rising of court without altering the fine amount.
2. CC No.717 of 2006 was based on a private complaint filed by the 1st respondent herein, against the revision petitioner, alleging an offence punishable under Section 138 of the N.I Act. His case was that, the revision petitioner borrowed Rs.4 lakh from him on 27.09.2006, and towards discharge of that debt, he issued Ext.P1 cheque on 13.10.2006, assuring him that there would have been sufficient funds in his bank account to honour the same. Accordingly, the 1st respondent presented that cheque before the drawee bank, but it was dishonoured due to insufficiency of funds, and it was returned to the 1st respondent along with a memo dated 17.10.2006. He sent lawyer notice to the revision petitioner in the address of his business place and also at his residential address, intimating dishonour of the cheque and demanding the cheque amount. In spite of receipt of that notice, he failed to repay the amount and hence he filed the complaint under Section 138 of the N.I Act.
3. On appearance of the revision petitioner on summons, the learned trial court read over and explained the particulars of offence, to which he pleaded not guilty and claimed to be tried.
4. PWs 1 and 2 were examined and Exts.P1 to P6 were marked from the side of the 1st respondent. The revision petitioner denied all the incriminating circumstances brought out in evidence, in his 313 examination. But, no defence evidence was adduced.
5. The trial court, on analysing the facts and evidence, found the revision petitioner guilty under Section 138 of the N.I Act, and he was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.4 lakh with interest @ 9% per annum from the date of dishonour of the cheque till the date of payment. In default, he had to undergo simple imprisonment for six months more.
6. Aggrieved by the judgment of conviction and sentence, the revision petitioner preferred Crl.Appeal No.213 of 2009. Before the appellate court, the revision petitioner filed Crl.M.P No.3765 of 2009 to accept the reply notice along with its postal receipt and acknowledgment card, and the same was accepted and marked as Exts.D1, D1(a) and D1(b). His further prayer in that petition, to recall PW1 for further cross examination, was rejected. His Crl.M.P.No.3764 of 2009 for summoning the Manager of the Union Bank of India, to produce cheque No.203355 dated 27.09.2006, by which the 1st respondent allegedly made payment of Rs.4 lakh to the revision petitioner, was rejected by the appellate court, for the reason that, the said Manager was already examined from the side of the 1st respondent as PW2 and, Ext.P6 document was marked through him.
7. On analysing the available facts and evidence, the appellate court confirmed the conviction, but the substantive sentence of simple imprisonment for six months was reduced to imprisonment till rising of court, and the compensation amount of Rs.4 lakh awarded by the trial court was converted into fine amount, and in default of payment of fine, the revision petitioner was directed to undergo simple imprisonment for two months, with a further direction that the fine amount will be paid to the complainant as compensation under Section 357(1) of Cr.P.C. Aggrieved by the appellate court judgment, the revision petitioner approached this Court with the above revision petition.
8. Heard learned counsel for the revision petitioner and learned counsel for the 1st respondent.
9. The High Court while exercising the revisional jurisdiction under s
(1) Revisional jurisdiction – Limited power under revisional jurisdiction is to do justice in accordance with principles of criminal jurisprudence and it would not be appropriate for High Court to re....
The presumption favoring the complainant under Sections 118 and 139 of the NI Act remains unless disproven by the accused.
A signed blank cheque, validly handed over by the accused, attracts the presumption under Section 139 of the Negotiable Instruments Act, unless the accused provides evidence to the contrary. The burd....
The main legal point established in the judgment is that the presumption of liability on the drawer of a cheque under Section 139 of the N.I. Act is rebuttable, and the accused must provide evidence ....
Signature admission on cheque raises presumption of debt under NI Act; accused must rebut by preponderance even if blank security cheque; revisional jurisdiction limited, upholds concurrent findings ....
The court's revisional jurisdiction does not permit reappraisal of evidence, reinforcing the presumption of debt under S.139 of the Negotiable Instruments Act.
Criminal Law - Dishonoured of Cheque - Appeal against conviction - Petitioner in this case, did not raise any probable defence which would create doubts in mind of Court. Court find no reason to inte....
Once execution of a cheque is admitted, the presumption under Section 139 of the Negotiable Instruments Act arises, and the burden shifts to the accused to rebut the existence of a legally enforceabl....
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