Remanded

Suresh Kumar v. State of Kerala

Kerala HC1 Nov 2017Crl.Rev.Pet/873/2017

Case brief

AI extract

What is this about?

The High Court set aside the appellate judgment dismissing appeals against conviction and sentence for cheque dishonour under Section 138 NI Act. The court remitted the matter to the appellate court to reconsider statutory presumption and payment timelines without adducing fresh evidence, setting a 4-month disposal target.

What did the court decide?

Impugned appellate judgment set aside; appeals restored to appellate Sessions Court to reconsider rival arguments on statutory presumption and payment timeline.

Suresh Kumar Vs State of Kerala — Cheque Dishonour | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939

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Crl.Rev.Pet.No. 873 of 2017 ()

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CRL.A.NO. 404/2014 OF ADDITIONAL SESSIONS COURT-V, ERNAKULAM CC.NO. 2388/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ERNAKULAM

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REVISION PETITIONER/APPELLANT/ACCUSED:

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SURESH KUMAR, AGED 54 YEARS, S/O.SUKUMARA MENON, LATHA NIVAS, PACHALAM.P.O., ERNAKULAM DISTRICT, KOCHI-682 012.

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BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.M.F.MOHAMMOD SIYAD SMT.ACHU SUBHA ABRAHAM

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RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT:

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1. E.N.SURENDRAN, AGED 65 YEARS, S/O.NARAYANAN, ILLIKKAL HOUSE, KOTTAYATHUPARA, THIRUVANKULAM P.O., ERNAKULAM DISTRICT-682 305.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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R1 BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-11-2017, ALONG WITH CRL.RP. NO. 874/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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ALEXANDER THOMAS, J.

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==================

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Crl.R.P.Nos.873 & 874 of 2017

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==================

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Dated this the 1^st day of November, 2017 O R D E R

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The parties in these two revision petitions are the same. In Crl.R.P.No.873/2017, the petitioner is accused for offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No. 2388/2009 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam, instituted on the basis of the complaint filed by the 2^nd respondent. The subject matter of the complaint in C.C.No. 2388/2009 (which led to Crl.R.P.No. 873/2017) relates to dishonour of two cheques, both dated 22.6.2009 for Rs.50,000/-, thus totalling to Rs.1 lakh. Crl.R.P.No. 874/2017 arises out of C.C.No.2282/2009, which in turn related to dishonour of a cheque dated 11.6.2009 for Rs.50,000/-. The two complaints in C.C.No.2388/2009 and C.C.No. 2282/2009, were jointly tried by the trial court concerned. The trial court as per the impugned judgment rendered on 24.7.2014 has convicted the petitioner for the abovesaid offence and in C.C.No. 2388/2009 he has been sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.1,40,000/- to the complainant under Sec. 357(3) of the Cr.P.C. and in default thereof, to undergo simple imprisonment for a period of one month. Whereas in C.C.No. 2282/2009, which has led to

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Crl.R.P.873/17 & c.c - : 2 :-

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Crl.R.P.No.874/2017, he has been sentenced to undergo simple imprisonment till rising of the court and to pay compensation of Rs. 70,000/- with a default sentence clause of one month, etc.

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To challenge the conviction and sentence imposed in C.C.No. 2388/2009, the petitioner had preferred Crl.Appeal No. 404/2014 and in respect of conviction and sentence in C.C.No.2282/2009, he had filed Crl.Appeal No. 405/2014. The appellate Sessions Court concerned (Court of Addl. Sessions Judge-V, Ernakulam) as per the impugned common judgment dated 19.7.2017 has dismissed both the appeals and has thereby confirmed the conviction and sentence imposed in the above two complaints. It is challenging these concurrent verdicts of the courts below in respect of the two complaints that the petitioner has preferred the abovesaid Criminal Revision Petitions.

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Heard Sri.Thomas T.Varghese, learned counsel appearing for the revision petitioner (accused), Sri.Sunil Nair (Palakkat), learned counsel appearing for R-2 (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State.

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Apart from the various contentions on the merits of the matter, Sri.Thomas T.Varghese, learned counsel appearing for the revision petitioner (accused) in these two cases, has also given more emphasis on one such contention, which is as follows:-

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It is urged that the basic case set up by the complainant is that he had stood as a guarantor for a bank loan availed for a partnership firm, in which,

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Crl.R.P.873/17 & c.c - : 3 :-

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the wife of the accused and another lady were the partners and that the said partners could secure a bank loan on the strength of a mortgage of the property of the complainant. That the property of the complainant was proceeded against due to non-payment of liabilities owed by those partners to the bank concerned and that the present three cheques in question have been issued by the petitioner, who is the husband of one of the abovesaid partners of the firm, in discharge of the liabilities owed by the aforesaid partner of the partnership firm, to the complainant herein. That the complainant itself would place reliance on Ext.P-1 agreement dated 20.11.2008, wherein the petitioner's liability is stated to be Rs.3 lakhs, which has to be paid by him on or before 27.2.2009. Further that the defence has placed reliance on Ext.D-2 suit filed by the complainant on 22.3.2009, wherein it has been stated that towards discharge of the liability owed by the petitioner's wife, a sum of Rs.3 lakhs has been paid and further that the balance amount payable in that regard by the petitioner's wife is Rs.2,72,000/-. It is also urged that Ext.D-2 suit was abandoned by the complainant and further that there is no mention about Ext.P-1 agreement dated 20.11.2008 in Ext.D-2 suit filed on 22.3.2009. On the basis of these aspects, it is argued by the petitioner that the liability of Rs.3 lakhs shown in Ext.P-1 agreement dated 20.11.2008 has been discharged by the petitioner's wife as per the admitted case of the complainant in Ext.D-2 suit and that this would strike at the very root of the prosecution case, etc.

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To confront the abovesaid arguments of the petitioner, Sri.Sunil Nair (Palakkat), learned counsel appearing for the 2^nd respondent (complainant) would submit that the said submissions and contentions

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Crl.R.P.873/17 & c.c - : 4 :-

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urged by the petitioner is a complete misleading of the total factual scenario and that the untenability of the said contention could be easily understood on appreciating the entire factual transactions, which took place between the parties since 23.3.2006. The details in that regard have also been adverted to by the learned counsel appearing for the 2^nd respondent complainant. It is also urged by the learned counsel appearing for the 2^nd respondent (complainant) that the accused has no case whatsoever that the abovesaid payments of Rs. 3 lakhs referred to in Ext.D-2 dated 22.3.2009 are payments, which were made on or after the commencement of the Ext.P-1 agreement dated 20.11.2008 and further the complainant would argue that all those payments for the total amount of Rs. 3 lakhs were made prior to Ext.P-1 agreement dated 20.11.2008.

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Per contra, Sri.Thomas T.Varghese, learned counsel appearing for the revision petitioner (accused) would argue that even if it is assumed, without admitting, that the complainant in this case could draw the benefit of the statutory presumption, still it is a rebutable presumption and that going by the aforesaid facts stated by the petitioner, which are based on admitted facts projected by none other than the 2^nd respondent complainant, it would clearly show that the statutory presumption, if arisen, has disappeared and thereafter it was the burden of the complainant to prove beyond reasonable doubt his case. That the petitioner accused can certainly draw upon the inherent contradictions and gray areas in the very case projected by the complainant in order to show that, by the force of

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Crl.R.P.873/17 & c.c - : 5 :-

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preponderance of probability, there is a strong doubt and question mark raised regarding the very basis of the complainant's case and if such a case is so strongly built up, the presumption disappears. That it is not the burden of the accused to prove that the said payments of Rs.3 lakhs referred to Ext.D-2 dated 22.3.2009 were made on or after Ext.P-1 agreement 20.11.2008, as the recital in Ext.P-2 suit is very clear that those are payments of Rs. 3 lakhs, which are as on the date of institution of the Ext.D-2 suit dated 22.3.2009. That if at all the complainant had a case that those payments were made only before the commencement of Ext.P-1 agreement dated 20.11.2008, it was for the complainant to prove beyond reasonable doubt those aspects, as the burden of proof that is cast on an accused to rebut the statutory presumption in the reverse onus clause, is only based on preponderance of probability and not based on the heavy burden of proof beyond reasonable doubt and that the abovesaid facts and circumstances relied on by the accused on the basis of the factual case projected by none other than the complainant would be more than sufficient to rebut the statutory presumption even it is assumed that such a presumption could be drawn by the complainant in the facts and circumstances of this case. It is also pointed out that the said argument of the petitioner is without prejudice to his contention that the complainant is not entitled to draw the benefit of statutory presumption in the facts and circumstances of this case, etc.

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On hearing the rival pleas of both sides in respect of the

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Crl.R.P.873/17 & c.c - : 6 :-

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abovesaid contention as well as the other contentions, this Court is of the considered view that the aforementioned contentions posed by the petitioner have not been seriously and properly considered by both the courts below in its correct perspective. Therefore, matters certainly require a serious re-look at the hands of the courts below. This Court could have remitted the matter to the trial court. However, it is felt that such a remit to the trial court would entail unnecessary delay and inconvenience to both parties and that the interest of justice could be more advanced if the matter is remitted to the appellate court, as otherwise the parties will have to bear burden of this litigation for longer time. In this view of the matter, it is ordered that the impugned appellate judgment dated 19.6.2017 rendered by the appellate court in Crl.Appeal Nos. 404 and 405 of 2014 will stand set aside. Resultantly, it is ordered that Crl.Appeal Nos.404 and 405 of 2014 will stand restored to the file of the appellate Sessions Court concerned. The appellate court will have to consider the rival arguments of both sides in respect of the abovesaid contentions posed by the learned counsel appearing for the petitioner as well as all the other contentions that may be advanced by either sides. The appellate court will render a considered verdict on the rival submissions of both sides based on the evidentiary materials already on record and the parties need not be permitted to adduce any additional evidence. Both sides will be at liberty to furnish respective argument notes, which will form part of the records. The appellate court should consider the rival arguments on both sides in its

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Crl.R.P.873/17 & c.c - : 7 :-

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proper factual and legal perspective. It is also made clear that none of the observations of this Court in this order shall be construed as an expression of opinion on the merits of the controversy and those are all matters which are fully relegated to the consideration of the appellate court concerned.

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The counsel appearing for the appellant/accused and the counsel appearing for the 1^st respondent/complainant shall appear before the appellate court at 11 a.m. on 30.11.2017 on which day, the said court will fix up a date for hearing of the appeal, which is convenient to both sides, and then proceed further with the matter, in accordance with law.

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Having regard to the fact that the transactions between the parties arose long time ago, the appellate court will give top priority for the disposal of the above appeals and reasonable measures may be taken to ensure that the same is disposed of without much delay, preferably within a period of 3 to 4 months from the date of production of a copy of this order and the petitioner will produce certified copy of this order before the appellate court for perusal and further action.

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With these observations and directions, the aforecaptioned Criminal Revision Petitions stand finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Suresh Kumar v. State of Kerala

Case brief

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Suresh Kumar v. State of Kerala

Case brief

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