Dismissed

M.K.Siyad v. State of Kerala

Kerala HC30 Mar 2023Crl.Rev.Pet/34/2022

Case brief

AI extract

What is this about?

In a Criminal Revision Petition under Sections 397 and 401 Cr.P.C. challenging a conviction for cheque dishonour under Section 138 NI Act, the High Court dismissed the petition upholding the lower courts' findings on presumptions. While expressing doubt on granting four months further time due to the case's long pendency, the Court granted one month for compensation payment and deferred execution

What did the court decide?

Revision petition dismissed; execution of sentence deferred till 28.4.2023; one month time granted to pay compensation.

M.K.Siyad Vs State of Kerala — Cheque Dishonour | Kerala HC (2023)

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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 A. BADHARUDEEN

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THURSDAY, THE 30^TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945

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CRL.REV.PET NO. 34 OF 2022

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CRA NO.145/2017 ON THE FILES OF THE DISTRICT COURT & SESSIONS COURT, THALASSERY

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REVISION PETITIONER/APPELLANT/ACCUSED:

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M.K.SIYAD AGED 50 YEARS, MANAMPARAMBIL HOUSE, DOOR NO. 43/2300, SRM ROAD, COCHIN, PIN - 682018

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BY ADVS. P.MARTIN JOSE M.A.MOHAMMED SIRAJ P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON HARIKRISHNAN S.

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RESPONDENTS/COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 M.Y. HUMAYOON KABEER AGED 50 YEARS, S/O M.A. YOUSEF, MELERY HOUSE, AMBILAD DESOM, KUTHUPARAMBA AMSOM, KANNUR DISTRICT, PIN - 670643 R1 BY SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE R2 BY ADVS. T.P.SAJID SHIFA LATHEEF

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.REV.PET NO. 34 OF 2022 2

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ORDER

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Dated this the 30^th day of March, 2023

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This revision petition has been filed under Section 397 r/w Section 401 of the Code of Criminal Procedure (for short, 'the Cr.P.C.' hereinafter), challenging conviction and sentence in S.T.C.No.291/2004, dated 29.4.2017 and modified by the appellate court in Crl.A.No.145/2017, dated 7.8.2019.

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The respondents herein are State of Kerala as well as the original complainant.

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Heard the learned counsel for the revision petitioner, the learned Public Prosecutor and also the learned counsel appearing for the 2^nd respondent.

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I shall refer the parties as ‘complainant’ and ‘accused’, for convenience.

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The case of the complainant before the trial court is that, the accused herein borrowed an amount of Rs.97,000/(Rupees Ninety Seven Thousand only) and in discharge of the said sum, cheque, dated 30.10.2003, was issued to repay the same.

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CRL.REV.PET NO. 34 OF 2022 3

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However, on presentation of the cheque, the same got dishonoured, for want of funds. Though legal notice was issued, the amount was not paid. Thereafter, the complainant lodged complaint under Section 142 of the Negotiable Instruments Act (for short, 'the NI Act' hereinafter), alleging commission of offence punishable under Section 138 of the NI Act, by the accused.

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The trial court secured the presence of the accused for trial. During trial, PW1 and PW2 were examined and Exts.P1 to P9 marked. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and when opportunity was provided to the accused to adduce defence evidence, DW1 also was examined.

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On hearing both sides, the learned Magistrate imposed Simple Imprisonment for a period of one month with a direction to pay Rs.97,000/- (Rupees Ninety Seven Thousand only), as compensation under Section 357(3) of the Cr.P.C. In default, Simple Imprisonment for three months was imposed. The complainant challenged the same before the appellate court and the appellate court also confirmed the conviction, by modifying

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CRL.REV.PET NO. 34 OF 2022 4

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the sentence for a day till rising of the court, with direction to pay compensation, as ordered by the trial court.

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While assailing the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the accused reiterated the contentions before the trial court and appellate court. Finally, it is submitted by the learned counsel for the accused that the accused is satisfied with grant of four months time to pay the compensation.

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Whereas, the learned counsel for the 2^nd respondent /complainant strongly opposed grant of time, on the submission that, this transaction is of the year 2003 and this is the second round of litigation. Therefore, time cannot be granted.

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In fact, the learned counsel miserably failed to substantiate anything to re-visit the judgments impugned, by exercising the limited power of revision available at this Court. 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. Decisions reported in [(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan

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Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda , are on this point.

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11. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I. Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions 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. See decisions reported in [2010 (2) KLT 682 (SC)], Rangappa v. Mohan; [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, [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2)

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SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], Kalamani Tex (M/s.) & anr. v. P.Balasubramanian . In this case, the courts below had given benefit of presumptions in favour of the complainant, on the finding that the complainant discharged his initial burden. The said findings are perfectly justified in view of the discussions held above.

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12. For the above reasons, this revision petition must fail and is accordingly, dismissed. The learned counsel for the revision petitioner/accused sought four months time to pay the compensation. I t is noticed that this complaint was filed as early in the year 2004 and as of now, during 2023 also, the same is not finalised. Therefore, grant of four months time cannot be considered, at this stage. Considering the request of the learned counsel for the revision petitioner/accused, one month's time from today is granted to pay the compensation and therefore, execution of the sentence shall stand deferred till 28.4.2023 and the accused is directed to appear before the trial court on 29.4.2023, to undergo the sentence till rising of the court and to pay the fine amount or else to undergo the default sentence also. In default to

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CRL.REV.PET NO. 34 OF 2022 7

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do so, the trial court is directed to execute the sentence as per law, without fail. It is specifically ordered that no further extension will be granted in this matter.

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Registry is directed to forward a copy of th is order to the trial court, for information and compliance.

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Sd/-

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A. BADHARUDEEN JUDGE

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M.K.Siyad v. State of Kerala

Case brief

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M.K.Siyad v. State of Kerala

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