TMI Blog2023 (9) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... on petition to interfere with the concurrent findings of conviction. However, the sentence requires modification to ensure payment of the cheque amount. The conviction imposed by the Courts below stands confirmed. Consequently, the accused is sentenced to undergo simple imprisonment for a day till raising of the Court and to pay fine of Rs.10,00,000/-. Fine, if realized, the same shall be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of eight months - this revision petition succeeds in part and is accordingly allowed in part by modifying the sentence. - THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FOR THE PETITIONER : ADV K.C.SUDHEER FOR THE RESPONDENT : BY ADVS. C.V.MANUVILSAN O.A.ANJU(K/000515/2018) FARHAN M.M.(K/001692/2019) AJESH K. ANTONY(K/41/2022) PP - M P PRASANTH ORDER This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in S.T. No.2975/2012 on the files of the Judicial First Class Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whereas, it is submitted by the learned counsel for the 1st respondent that the accused/revision petitioner is none other than the brother's son of the complainant and Ext.P1 cheque was issued subsequent to execution of Ext.P6 agreement whereby the accused/revision petitioner agreed to give Rs.8,00,000/- borrowed on 19.04.2008 and also towards value of 8 sovereigns of gold ornaments obtained from the complainant. 10. In this case, PW1 examined is the complainant. He deposed the relation of the accused to the complainant as brother's son. The evidence of PW2 is very vital. PW2 submitted that the complainant is the younger brother of his father and accused is the elder brother of his father. He had given evidence in support of the evidence of PW1 and stated that the accused borrowed Rs.8,00,000/- and 8 sovereigns of gold ornaments from the complainant and thereafter the liability was settled which led to Ext.P6 agreement. Acting on Ext.P6 agreement, Ext.P1 cheque was issued to clear the said liability. Although PW1 and PW2 were cross-examined, their evidence in the matter of execution of Ext.P6 agreement and issuance of Ext.P1 cheque not at all shaken. In fact the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the accused/petitioner argued the details of the transaction are not stated either in the notice or in the compliant. Therefore, there are suppression of material facts which will go to the root of the matter. Though, this contention was raised before the Courts below, the Courts below negatived the same, relying on the evidence of PW1 and PW2 and Exts.P1 to P6 and thereby the benefit of twin presumptions under Sections 118 and 139 of the N.I. Act was adjudged in favour of the complainant. In fact, nothing substantiated to revisit the concurrent findings, by exercising the limited power of revision available to this Court. 15. 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, which 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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. 17. 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 nonconsideration of any relevant materials, which would go to the root of the matter or any fundamental violation of the principle of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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