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2020 DIGILAW 167 (KER)

Suryadas. K. v. G. Venugopal, S/O. Govindavadhyar

2020-02-07

R.NARAYANA PISHARADI

body2020
ORDER : The petitioner is the accused in the case S.T.No.137/2017 on the file of the Court of the Judicial First Class Magistrate-III, Cherthala. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder and sentenced him to simple imprisonment for a period of three months and to pay a fine of Rs.3,00,000/-and in default of payment of fine, to undergo simple imprisonment for a period of one month. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.A.No.47/2019 before the Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner and modified the sentence. The appellate court reduced the sentence of imprisonment to imprisonment till the rising of the court and maintained the sentence of fine imposed on the petitioner by the trial court. 4. Aggrieved by the concurrent findings of guilty and conviction made against him by the courts below and the sentence imposed on him by the appellate court, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner and the first respondent/complainant. 6. The case of the complainant is as follows : The complainant is the Managing Partner of the firm 'Balaji Finances' which conducts money lending business. On 26.12.2012, an amount of Rs.3,00,000/-was paid as loan to the accused by the complainant. The accused executed a promissory note for that amount. On 28.12.2013, the accused executed and issued a cheque for Rs.3,00,000/-to the complainant in discharge of the liability. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused did not accept the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P10 documents were marked on his side. No evidence was adduced by the accused. 8. The accused did not accept the notice. He did not pay the amount of the cheque. 7. During the trial of the case, the complainant got himself examined as PW1 and Exts.P1 to P10 documents were marked on his side. No evidence was adduced by the accused. 8. When examined as PW1, the complainant gave evidence regarding borrowing of the amount of Rs.3,00,000/-by the accused. He also gave evidence regarding the execution and issuing of the cheque by the accused in discharge of the liability. 9. Though PW1 stated in the proof affidavit that the accused had written the cheque and signed it, during the cross-examination he stated that the accused had brought a filled up cheque and signed it in his presence. This inconsistency in the evidence of PW1 has been rightly ignored by the trial court as inconsequential. It is significant that the accused did not challenge or disp ute the signature in Ext.P1 cheque. 10. The complainant produced and proved Ext.P10 promissory note which was executed by the accused at the time of borrowing the amount. The complainant also produced Ext.P8 ledger and Ext.P9 day book to prove the original transaction. 11. The plea of the accused was that the complainant was conducting a jewellery near his house and that he (the accused) had purchased gold from that jewellery for the marriage of his sister and at that time, there was shortage of Rs.25,000/-and as security for that amount, he gave a signed blank cheque to the complainant. The plea of the accused was that the complainant had misused the aforesaid cheque and filed the case. 12. No evidence was adduced by the accused to prove the aforesaid plea. According to the accused, one V.T.Soman was with him at the time of purchasing the gold and issuing the signed blank cheque to the complainant. Soman was not examined by the accused to prove his plea. No bill was also produced by the accused to prove that he had purchased gold from the jewellery conducted by the complainant. 13. In the aforesaid circumstances, the courts below have rightly found that the accused failed to rebut the presumption under Section 139 of the Act. I find no illegality, impropriety or perversity in the appreciation of evidence by the courts below and the concurrent findings entered against the petitioner/accused. 14. 13. In the aforesaid circumstances, the courts below have rightly found that the accused failed to rebut the presumption under Section 139 of the Act. I find no illegality, impropriety or perversity in the appreciation of evidence by the courts below and the concurrent findings entered against the petitioner/accused. 14. Learned counsel for the petitioner contended before this Court that Exts.P8 and P9 are computer printouts and they were admitted in evidence without a certificate as provided under Section 65B(4) of the Indian Evidence Act. However, the judgment of the appellate court shows that Exts.P8 and P9 documents were marked in evidence without any objection raised by the accused. 15. In Sonu @ Amar v. State of Haryana : AIR 2017 SC 3441 , the Apex Court has held as follows: “That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B(4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the trial court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. ..... It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. ........ We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof”. (emphasis supplied). 16. In the instant case, since the accused had not raised any objection to the marking of Exts.P8 and P9 documents before the trial court no such objection can be raised by him before this Court in the revision petition. 17. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly 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 High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See Kishan Rao v. Shankargouda : AIR 2018 SC 3173 ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 18. The appellate court has shown maximum leniency in awarding sentence on the petitioner/accused. There is also no sufficient ground to interfere with the sentence imposed on the petitioner/accused by the appellate court. 19. Consequently, the revision petition is dismissed. Conviction of the petitioner/accused by the trial court for the offence under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. The sentence imposed on the petitioner/accused by the appellate court is also confirmed. However, the petitioner/accused is granted a period of six months from today to remit the fine amount in the trial court.