This revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C . for convenience) and the revision petitioner herein is the sole accused in S.T.No.3548 of 2016 on the file of the Judicial First Class Magistrate Court, Taliparamba. The respondents herein are the original complainant as well as the State of Kerala.

2. The revision petitioner impugns judgment dated 31.08.2019 in the above case and thereby, he was convicted and sentenced for the offence punishable under Section 138 of the Negotiable Instruments Act(hereinafter CRL.R.P. NO.596 OF 2022 -:3:- will be referred as NI Act for convenience). He also impugns judgment in Crl.Appeal No.278 of 2019 dated 05.07.2022 on the file of the Sessions Court, Thalassery by which, the learned Sessions Judge dismissed the appeal.

3. Heard the learned counsel for the revision petitioner/the accused and the learned Public Prosecutor on admission. Notice to the first respondent/the original complainant stands dispensed with.

4. I shall refer the parties in this Revision Petition as 'complainant' and 'accused' for convenience.

5. The case put up by the complainant before the trial court was that in repayment of Rs.2 lakh entitled to by the complainant, the accused issued cheque dated 10.11.2013 for Rs.2 lakh drawn on State bank of Travancore, Blathur Branch with assurance of encashment. But when the cheque was presented for collection, the same was dishonoured for want of funds. CRL.R.P. NO.596 OF 2022 -:4:- Though notice of demand was issued, no amount repaid. Accordingly, prosecution alleging commission of offence punishable under Section 138 of the NI Act was initiated.

6. The court below took cognizance of the matter and secured the presence of the accused for trial. During trial, PW1 to PW3 examined and Exts.P1 to P7 were marked on the side of the complainant.

7. After questioning the accused under Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced.

8. On appreciation of the evidence, the trial court imposed simple imprisonment for a period of one month and to pay fine of Rs.2,00,000/- and the fine was ordered to be paid as compensation to the complainant. On failure of pay the fine amount, default imprisonment for a period of two months also was imposed. Crl.Appeal No.278 of 2019 arising therefrom also was dismissed by CRL.R.P. NO.596 OF 2022 -:5:- the learned Sessions Judge.

9. Now the concurrent verdicts of the trial court as well as the appellate court are under challenge before this Court. While arguing the case, it is submitted by the learned counsel for the revision petitioner that Ext.P2 dishonour memo was not in relation to Ext.P1 cheque and therefore, dishonour of Ext.P1 cheque for want of funds not proved by the complainant. Similarly, it is argued that the lower court ignored the fact that the entries in the cheque were not written by the accused. Further, it is contended that the complainant miserably failed to prove his initial burden in this matter.

10. In fact, the challenge except in respect of Ext.P2 are matters which would require appreciation and re-appreciation of evidence and the same cannot be done, while exercising the power of revision. However, in this matter, as could be read out from the judgments, it is to be noted that Ext.P2 is the dishonour memo which was CRL.R.P. NO.596 OF 2022 -:6:- issued by the Bank, when Ext.P1 was presented for collection. This contention was raised before the trial court on the submission that Ext.P2 did not contain the cheque number shown in Ext.P1. However, in order to prove Ext.P2, dishonour memo was pertaining to Ext.P1, complainant examined PW2, the Branch Manager of Syndicate Bank, Sreekandapuram Branch, through which Ext.P1 cheque was sent for collection. PW2 given evidence that Ext.P1 cheque bearing No.160626 was sent for collection to the State bank of Travancore, Blathur Branch and Ext.P5 letter was received therefrom. PW3, Manager of State bank of Travancore, Blathur Branch also was examined and he had produced Ext.P7, the relevant page of the Cheque return register and the trial court found that on reading Ext.P2 along with Exts.P5 and P7, the complainant successfully established that Ext.P2 dishonor memo was pertaining to Ext.P1 cheque and therefore, the said contention was found against the CRL.R.P. NO.596 OF 2022 -:7:- accused.

11. The appellate court also re-appreciated the evidence and concurred the finding of the trial court. Thus, it appears that the challenge raised by the accused to the effect that Ext.P2 dishonour memo was not pertaining to Ext.P1 cheque could not be accepted for any reason. Therefore, this challenge stands repelled. In this case, the trial court as well as the appellate court given emphasis to the evidence of PW1 to PW3 and Exts.P1 to P7 to hold that the complainant discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque. Thereby, the courts below given benefit of presumption under Sections 118 and 139 of the NI Act in favour of the complainant. Law regarding presumption is also settled as well.

12. In this connection, I would like to refer a 3 Bench decision of the Apex Court in [2010 (2) KLT 682 (SC)], Rangappa v. Sri.Mohan. In the above decision, CRL.R.P. NO.596 OF 2022 -:8:- the Apex Court considered the presumption available to a complainant in a prosecution under Section 138 of the N.I Act and held as under:

13. 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 :

P.Balasubramanian, the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of CRL.R.P. NO.596 OF 2022 -:11:- the N.I Act it was held as under:

18. In another decision reported in [(2015) 3 SCC 123 : ( 2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke , the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non- consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135) :

19. 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 non-consideration of any relevant CRL.R.P. NO.596 OF 2022 -:16:- materials, which would go to the root of the matter or any fundamental violation of the principle of law, then only the power of revision would be made available.

20. Thus, it appears that the concurrent verdicts of conviction imposed by the trial court as well as the appellate court do not require any interference.

21. However, it appears that sentence requires modification to effect payment of the cheque amount within the statutory limit. Therefore, the sentence is modified.

22. In this result, this revision petition is allowed in part. Conviction imposed by the trial court as well as the appellate court stands confirmed. Sentence is modified as under:

23. Faced with the situation, the learned counsel for the accused sought for three months time to pay the amount. Considering the fine amount as Rs.2,00,000/- and taking note of the fact that the transaction was in the year 2013, I am inclined to grant one month time from today to pay the compensation.

24. Accordingly, the revision petitioner/the accused is given one month time from today to pay the compensation and to undergo the sentence. Therefore, the revision petitioner/the accused is directed to appear before the trial court on 04.12.2022 to pay the compensation and to undergo the sentence. The execution of the sentence shall stand deferred till 03.12.2022.

CRL.R.P. NO.596 OF 2022 -:18:- On failure to do so, the trial court is directed to execute the sentence without fail.

Registry is directed to forward a copy of this order to the courts below concerned for information and compliance.

A. BADHARUDEEN JUDGE rkj