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SAJI THOMAS v. RAVEENDRANATH - Crl Rev Pet No. 599 of 2002(C)  RD-KL 571 (24 August 2006)
2. To the crucial and skeletal facts first. The petitioner was allegedly found to be transporting 22 litres of toddy in a bicycle without any legal authority at 1.15p.m. on 1.9.2000 along the public road in Cherthala taluk. The offence was detected by the Excise Inspector and party. The prosecution examined PWs. 1 to 5 and proved Exts.P1 to P4. MO1 was also marked. The accused does not appear to have disputed the specific allegation of fact. He raised a contention that though he was not a licensed toddy tapper, he was substituting for DW1, who did have the requisite license for tapping. The courts below concurrently came to the conclusion that the said defence was not acceptable and that the petitioner, who did not have the requisite authorisation to work as a substitute tapper and did not have the license of DW1 available with him at the time when he was transporting, is not entitled to succeed in that defence. The courts further held that the proved culpable conduct amounts to an offence punishable under Section 55(a) of the Abkari Act.
3. The learned counsel for the petitioner raises one vital and crucial contention. He contends that toddy is not an illegal liquor. He further Crl.R.P.No. 2747 of 2006 3 contends that he is not alleged to sell or possess any illegal liquor which may lead to liquor tragedies. He has not manufactured or imported liquor without licence and proper contract. He has not sold liquor illegally without licence causing heavy financial burden on the State by avoidance of tax. Therefore, he is not liable to be proceeded against under Section 55(a) of the Abkari Act. Even assuming that he is liable for some other lesser offence, he cannot be prosecuted successfully for the offence under Section 55(a) in the light of the dictum in Sabu (supra).
4. The learned Director General of Prosecution, who, at the request of court advanced arguments, to the contrary contends that Sabu has been wrongly decided and that the conclusions drawn in Sabu are not justified by the scheme of the Kerala Abkari Act or the specific language of Section 55, including its side heading. The matter requires reference to an appropriate larger Bench, prays the learned D.G.P.
5. The question raised is important and serious and calls for a review of the provisions and precedents. Liquor is defined in Section 2(10) of the Kerala Abkari Act, which includes spirit of wine, arrack, spirits, wine, toddy, beer and "all liquids consisting of or containing alcohol". Arrack is Crl.R.P.No. 2747 of 2006 4 defined under Section 2(6A) of the Act and it means " any potable liquor other than toddy, beer, spirit of wine, wine, Indian made spirit, foreign liquor etc..." The expressiona "export, import, transport and transit" are all defined under the Act in Section 2(16) - (18) and transport means to move from one place in a State to another place in the State. Under the Kerala Abkari Act certainly there can be prohibition against manufacture, import, export, transport, transit, possession, storage sale etc. of any specified type of liquor and Section 8 of the Abkari Act reveals the only example, where an item of liquor, "arrack" has been totally banned in the State of Kerala from 1.4.1996.
6. Nowhere does the Kerala Abkari Act define legal liquor and illegal liquor. That is not a concept known to the law under the Kerala Abkari Act or the Rules. Since arrack is prohibited under Section 8, one may loosely call it an illegal liquor to mean prohibited liquor in contra distinction to other liquors which are non-prohibited liquors. Except to the extent of a blanket prohibition under Section 8, I am unable to place my finger on any liquor which can be said to be prohibited or illegal in the State of Kerala. Crl.R.P.No. 2747 of 2006 5
7. Under Chapter III of the Kerala Abkari Act, stipulations are made about import, export and transport of liquor and under Chapter IV provisions are made about manufacture, possession and sale of liquor. Chapter V deals with duties, taxes and rentals payable in respect of liquor and intoxicating drugs. Chapter VI deals with licenses etc. which can authorise persons to deal with liquor and intoxicating drugs. Chapter VII deals with general provisions and Chapter VIII deals with powers and duties of officers etc. Chapter IX containing Sections 55 to 68A deal, inter alia, with penalties and provisions relating to confiscation etc. Section 55 deals with consequences for certain acts done in contravention of the Act or any Rule or Order made under the Act. Section 56 deals with misconduct by licensees. Section 57 deals with adulteration by licensed vendor or manufacturer. Section 57A deals with adulteration of liquor or intoxicating drug with noxious substances. Section 58 deals with punishment for possession of illicit liquor. It is not necessary to advert to the various other provisions prescribing punishment.
8. The concept of illicit liquor is appearing in Section 58 of the Act, though illicit liquor is not as such defined. Non-payment of duty, taxes or Crl.R.P.No. 2747 of 2006 6 rental payable under the Abkari Act makes the liquor illicit. If duty, tax or rental has been paid, it must be held to be licit liquor attracting culpability under Section 58 of the Act. If such levy has not been paid, it must be held to be illicit liquor for the purpose of Section 58, though there is no definition as such of illicit liquor.
9. I have adverted to this to find out whether there is concept of legal liquor in contradistinction to illegal liquor. It becomes necessary because of the following observations which appear in Sabu (supra). I extract the following crucial passages in paragraphs 4 and 5 of the said decision.
4. xxx xxxx
" But, the object of the Act which is to be interpreted also shall be looked into. If a person sells or possesses illegal liquor (which may lead to liquor tragedies) or one manufactures or imports liquor without licence and proper contract or sells liquor illegally without licence causing heavy financial burden on the State by avoidance of tax etc., offence is very serious and punishment of a minimum fine of Rs. one lakh may be justifiable".
5. xxx xxxx
" Therefore, the words, import, export, transport, transit or
possession of liquor read with heading to the section show that it is applicable to illegal liquors." Crl.R.P.No. 2747 of 2006 7
10. When there is no distinction between legal liquors and illegal liquors, how is the dictum to be applied and enforced? I find merit in the submission of the learned Director General of Prosecutions that the decision in Sabu (supra) requires to be reconsidered. The learned D.G.P. points out that the attempt made to make use of the side heading to interpret the body of the section is not correct in as much as the head note deals only with "illegal import etc. of liquor and intoxicating drugs in violation of the Act, Rules and Orders under the Act" and does not make import, export, transport, transit, manufacture, etc. of illegal liquor punishable. The argument does appear to me to be weighty.
11. The various provisions of Chapter IX make specific acts punishable and culpability has no relationship whatsoever to any concept of legal liquor or illegal liquor. I must also immediately agree with the learned D.G.P. that Section 63 can come into operation only if there is no other specific provision for punishment of an offender. If there be any stipulation for punishment of an offender under any other provision, certainly Section 63 which comes into play only when punishment is "not otherwise provided for" cannot have any application. If an act is Crl.R.P.No. 2747 of 2006 8 punishable under Section 55 of the Kerala Abkari Act, there can certainly be no resort to the residuary provision under Section 63.
12. A Division Bench of this Court in Surendran v. Excise
Inspector (2004 (1) KLT
404) considered the distinction between
possession of liquor under Section 55(a) and Section 58 of the Abkari Act
and the dictum in paragraph 9 of the said decision, extracted below, clearly
brings out the distinction.
"9. Thus, it appears that the case shall fall within the ambit of S.55(a) only when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods. In case the possession is merely with the knowledge of the goods having been illegally imported or manufactured, the case would fall within the mischief of S.58".
13. Therefore there appears to be force in the contention that even if there be possession incidental to import, export, transport or transit in violation of Sections 10 and 13 of the Act. That will be clearly an instance of possession incidental to export or import, transport or transit which is made punishable under the Act and consequently attracts culpability under Section 55(a) of the Act.
14. To hold that toddy is legal liquor and therefore possession
Crl.R.P.No. 2747 of 2006
incidental to export, import, transport and transit proper of toddy in
of the provisions of Sections 10 and 13 would not amount to an
offence under Section 55(a) and would be only an offence under
does not appear to be acceptable though such a conclusion appears to
emanate from the
dictum in Sabu. The learned D.G.P. points out that on
two earlier occasions in Karthikeyan and Blan (supra) this
considered that question and had not made any distinction between legal
liquors and illegal liquors when
it comes to culpability under Section 55(a).
In the light of the very specific language used in Section 55, which reads:
"Whoever in contravention of this Act or of any rule
or order made under this Act" the person who indulges in the conduct of export, import, transport or transit, that would be punishable. It appears to be impermissible to contend that the contravention of the Act, Rule or Order would not attract culpability under Section 55 merely for the reason that the liquor concerned is not prohibited (illegal liquors to borrow the language of Sabu) as in the case of arrack under Section 8. Section 63, according to me, can apply only when the act does not fall within the mischief of Section 55 or is not Crl.R.P.No. 2747 of 2006 10 made punishable under any other provisions of the Act, Rule or Order.
15. In the instant case, there is no contention that transportation of toddy without authority is made punishable under any provision of the Rules concerned, orders or other provisions of the Act. The principle that the special excludes the general cannot be pressed into service. I repeat that Section 63 will not be applicable if Section 55 is applicable. Therefore, Section 55, according to me, must certainly take a case where the permitted liquor (other than arrack, which is prohibited under Section 8 of the Act), is also involved in the type of violation contemplated under clauses (a) to (i) of Section 55. Either under Section 55(1) or (2) such a contravention of the Act or Rule or order in respect of all types of liquor must be punishable under Section 55.
16. The learned Judge in Sabu was concerned about the monstrous punishment of a minimum fine of Rs. One lakh and maximum punishment of imprisonment for 10 years prescribed for the offence under Section 55 (a) of the Act. It must and does cause concern. That even innocuous violation of the stipulations of Sections 10 and 13 which do not even attract Crl.R.P.No. 2747 of 2006 11 the penal provision under Section 58 must be made punishable with such monstrous punishment does cause concern. It may have to be considered whether the law on that aspect can be held to be not fair, just and reasonable, but whimsical, fanciful and unreasonable that the provision should fail on the touchstone of constitutionality under Article 21 of the Constitution as opposed to the principles of due process. The possibility of innocuous violation being visited with such monstrous punishment does cause anxiety and concern in my mind. But I am unable to accept the reasons given in Sabu to distinguish between legal liquor and illegal liquor as to make Section 55 inapplicable to non-prohibited liquor. The absence of clarity on the law is creating havoc and misuse of the provisions by the unscrupulous.
17. I am, in these circumstances, satisfied that the matter deserves to be considered by a Division Bench of this Court and accordingly make a reference under Section 3 of the Kerala High Court Act. Post the case before a Division Bench. (R. BASANT) Crl.R.P.No. 2747 of 2006 12 Judge tm
? IN THE HIGH COURT OF KERALA AT ERNAKULAMCrl Rev Pet No. 599 of 2002(C)
1. SAJI THOMAS, S/O.V.J.THOMAS,
1. RAVEENDRANATH, S/O.KUNHIKKAVU AMMA,
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.P.DANDAPANI
For Respondent :SRI.N.HARIDAS
The Hon'ble MR. Justice R.BASANT
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 599 of 2002
- - - - - - - - - - - - - - - - - - - -
Dated this the 24th day of August, 2006
O R D E RThis revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.
2. The cheque is for an amount of Rs. 90,000/-. It bears the date 4.11.1995. According to the complainant the cheque was issued for the due discharge of any legally enforcible debt/liability. The cheque was dishonoured on the ground of insufficiency of funds. The notice of demand, though duly received and acknowledged, did not evoke any response. The complainant thereupon came to court after observing the statutory time table scrupulously. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused did not adduce any oral evidence. He proved Ext.D1 complaint filed by him long after the commencement of the prosecution before the police, wherein he Crl.R.P.No. 599 of 2002 2 complained about misuse of two cheque leaves lost from his possession.
3. The crux of the defence urged is that there was no transaction between the petitioner and the complainant; that the cheque was not issued for the due discharge of any legally enforcible debt/liability, that the cheque in question was lost from the possession of the petitioner and that the complainant, who has some how come into possession of the cheque, is trying to misutilise the same to stake a false and untenable claim. Except production of Ext.D1 no other evidence was adduced.
4. The courts below, in these circumstances, concurrently came to the conclusion that the execution and handing over of the cheque has been established satisfactorily. It was further held that the burden under Section 139 of the N.I. Act has not been discharged. Accordingly they proceeded to pass the impugned concurrent judgments.
5. The counsel have advanced arguments. The learned counsel for the petitioner assails the impugned verdict of guilty and conviction on three grounds. It is contended first of all that execution and handing over of the cheque have not been established satisfactorily and beyond doubt. It is Crl.R.P.No. 599 of 2002 3 secondly contended that, at any rate, the courts below should have held that the burden on the accused under Section 139 of the Act has been discharged and there is no satisfactory evidence to show that the cheque was issued for the due discharge of any legally enforcible debt/liability. Thirdly and finally it is contended that the sentence imposed is excessive.
6. Coming to the first contention, I have no hesitation to agree that the burden of proof - execution and handing over of the cheque - is on the complainant. The complainant has got to prove these allegations by satisfactory evidence beyond doubt. The presumption under Section 139 of the Act cannot be imported to prove execution or handing over of the cheque. The complainant must establish satisfactorily that the cheque was executed and handed over to him by the accused whereupon only the presumption under Section 139 of the Act can be drawn.
7. To prove execution, there can be many methods. In the instant case, PW1 was examined to prove execution. He asserted that the signature was affixed by the accused in his presence and thereafter the cheque was handed over to him. This assertion of PW1 is not seen Crl.R.P.No. 599 of 2002 4 effectively challenged in the course of cross examination. PW1 is making a statement on oath. The burden certainly is on the accused to bring to the notice of the court all circumstances which should persuade the court not to accept the evidence of PW1. Ext.P1 cheque is admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account. The explanation which the accused has to offer as to how the cheque leaf issued to him by his bank travelled from his possession to that of the complainant is certainly an important input while considering whether PW1's evidence about execution can be accepted or not.
8. It is in this context that we must take note of the eloquent conduct of the petitioner when he received the notice of demand which threatened him of criminal prosecution on the basis of Ext.P1 cheque issued by him to the complainant. Surprisingly and significantly the accused does not respond to the notice. For obscure reasons he did not deny at that stage that the cheque is not signed by him or that it was not handed over by him to the complainant. This is indeed crucial and vital. That piece of conduct must certainly weigh with the court while considering whether PW1's evidence Crl.R.P.No. 599 of 2002 5 can be accepted or not. It is of course not the law that guilt can be presumed and held established against the accused under Section 138 of the N.I. Act if the notice of demand is not replied to. The response to the notice of demand is certainly a vital input while considering whether the assertion of the complainant on oath can be accepted or not. It is only an imprudent person of the worst variety who will indulge in such conduct of not responding to such a notice of demand. The court is expected to adopt the yardstick of a prudent mind when considering whether the fact is proved or not. It is only a very imprudent mind which will not give due significance and attach importance to such conduct on the part of the indictee not responding to the notice threatening criminal prosecution against him. No person with his head on his shoulders is likely to indulge in such artificial, improbable and strange conduct. While considering the acceptability of the evidence of PW1 this indeed is a most crucial circumstance.
9. What is the case of the petitioner? According to him he had lost the cheque leaf. When was the cheque leaf lost? Under what circumstance was the cheque leaf lost? What is the conduct of the petitioner when he Crl.R.P.No. 599 of 2002 6 realised that such cheque leaf was lost? Is there any conduct congruent to lose of such cheque leaf as alleged by the petitioner? Is there any conduct consistent with the theory of loss of cheque leaf? It is crucial and vital that there is not a single piece of acceptable conduct in which the petitioner is shown to have indulged in if as a matter of fact the cheque leaf were lost from his possession. If it were lost, one would have expected the petitioner, himself an employee of a Co-operative Society, to atleast issue a stop payment memo. That was not done. Of course, a convenient Bank Manager did attempt to oblige his customer, the petitioner, by stating in the course of cross examination that oral information was given. It is crucial that even the Manager does not say when that oral information was given and in respect of which cheque. If any such oral information were given, it is extremely unlikely that the cheque would have been dishonoured except on the ground of stop payment. The memo of dishonour does not significantly reveal such a ground for dishonour at all.
10. It is now contended that the signature in the cheque is not that of the petitioner. In the total absence of such an assertion in the reply to the notice of demand, this case of the petitioner deserves to be viewed with Crl.R.P.No. 599 of 2002 7 considerable amount of care and caution, nay suspicion and distrust. Even when he realised that the cheque leaf allegedly lost by him was being put to use by an alleged stranger to claim amount from him, he remained silent. That conduct is certainly inconsistent with the denial of signature in Ext.P1.
11. The learned counsel for the petitioner submits that the courts below erred in invoking the jurisdiction under Section 73 of the Evidence Act to compare the signatures available in various records. In the absence of comparison of signature, there is not a semblance of material to support the denial of signature. I must note that there is no specific denial of signature at any point of time. When examined under Section 313 Cr.P.C. the accused could not muster sufficient courage to deny his signature. A careful perusal of S. 313 statement shows that the petitioner had no intention to deny his signature appearing in Ext.P1 with courage before a court.
12. The counsel then contends that PW2, the bank Manager, has stated that the signature does not tally. It is true that PW2 was summoned as a witness for the complainant. The dishonour memo did not at all show Crl.R.P.No. 599 of 2002 8 that the signature in Ext.P1 was in any way inconsistent with the specimen signature. A complacent complainant (or his counsel) ventured to put a question during chief examination, armed with the fact that there is no endorsement on the memo of dishonour that the signatures vary, whether the signature in Ext.P1 cheque and Ext.P6 specimen signature card do not tally. PW2 had stated that the signatures do not tally. It is significant that in the memo of dishonour such an endorsement is not there. The convenient and specious assertion by PW2 that the signature in Ext.P1 does not tally with that in Ext.P6 cannot deliver the petitioner any advantage.
13. The story does not end there. Even though the cheque was dishonoured on 7.11.1995 and the petitioner was immediately thereafter informed of the same, no complaint whatsoever was made before any one to complain about the misuse of the cheque and forgery by PW1. Realising that this piece of conduct may be obviously commended upon by the court, we find a convenient Ext.D1 being pressed into service. It bears the date 12.8.1997. I am not even on the delay in submitting Ext.D1. An alert Crl.R.P.No. 599 of 2002 9 reading of Ext.D1 conveys that even in Ext.D1 the petitioner did not muster courage to deny the signature in Ext.P1. That is certainly crucial and vital.
14. The learned counsel for the respondent/complainant submits that the petitioner by his essential persuasion is not a trustworthy person. He wants to rely on the opinion given by an expert in another case, wherein the expert has opined that the petitioner is one who camouflages his signatures. I shall eschew that circumstance altogether while considering the question. The accused points out that there is admission regarding dissimilarity of signature in Ext.P1 with various other admitted signatures. Dissimilarity in a signature is not certainly synonymous with disproof of the signature. It would be incorrect to assume that a skillful and recalcitrant indictee can avoid culpable consequences by bringing in dissimilarity in the various signatures affixed by him. That certainly is not the law. The proof of execution does not merely depend on similarity or otherwise of the signatures affixed. Even assuming that there are dissimilarities the Crl.R.P.No. 599 of 2002 10 conclusion appears to be inevitable that the cheque has been duly executed and handed over to the complainant.
15. Section 3 of the Evidence Act, when it defines the expression `proof' imports the standards of a prudent man. The court is expected to function and discharge its duties as a prudent man while considering the evidence to satisfy whether the fact is proved or not. A prudent man does not only read the lines, he must have the intelligence to read between the lines too. So construed, according to me, the evidence establishes beyond the shadow of doubt that the evidence of PW1 can be accepted and execution of Ext.P1 has been established satisfactorily. Not a semblance of doubt disturbs the judicial conscience in coming to the conclusion that execution and handing over of the cheque stand proved by the evidence of PW1, which is fortified by various circumstances that have already been referred to. The challenge raised on the first ground must and does fail in these circumstances.
16. Execution and handing over having been proved, certainly the presumption under Section 139 of the N.I.Act arises. It is not the obligation, it has been repeated many times by courts, on the complainant in Crl.R.P.No. 599 of 2002 11 a prosecution under Sec. 138 of the N.I. Act to independently establish the original transaction or the original consideration to discharge which the cheque had been issued. That is why the Legislature has carefully enacted Section 139, where there is a presumption in favour of the complainant and against the accused. The burden to rebut the presumption is on the petitioner. Until that burden is discharged, it is not necessary for the court to look for any primary evidence about the transaction or consideration. Of course, as held in Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001 SC 3897), Section 139 enacts a presumption of law and to rebut such law it is not merely sufficient to generate fanciful doubts in the mind of the court. In Narayana Menon v. State of Kerala (2006 (3) KLT 404 (SC) it has been clarified that the burden on the accused to rebut the presumption is only akin to that of a litigant in a civil case to prove his case. Preponderances of probabilities and possibilities is the yardstick that is expected of a civil litigant and hence for an accused who attempts to rebut the presumption under Section 139 no fanciful possibility, but a practical probability which the court finds to be acceptable adopting the yardstick of Crl.R.P.No. 599 of 2002 12 a prudent mind under Section 3 of the Act has to be established to successfully discharge his burden under Section 139. We will now see whether that burden has been discharged.
17. Except to pick holes in the case of the complainant, no comprehensive attempt is made by the accused. The complainant asserted that he knows the accused and his father also and that there has been association with them for some period of time. Significantly in the course of cross examination this assertion is not disputed or denied. It is contended that the source of the complainant to advance the amount of Rs.90,000/- has not been established. It is further contended that there is difference of one day, as to whether the cheque was given on the same evening of the demand or the next day, between the evidence in chief examination and cross examination. It is contended that no witness has been examined though they were stated to be present to prove the original transaction. These, according to me, are not sufficient to persuade any prudent mind to conclude that the burden on the petitioner under Section 139 of the Act has been discharged. In these circumstances it must Crl.R.P.No. 599 of 2002 13 certainly be held that the petitioner has not succeeded in discharging the burden on him under Section 139 of the Act to rebut the presumption that the cheque was not issued for the due discharge of a legally enforcible debt/liability.
18. No other contentions are raised on merits. I am satisfied that the challenge against the verdict of guilty and conviction must, in these circumstances, fails.
19. We now come to the question of sentence. The petitioner now faces a sentence of S.I. for a period of three months and to pay a fine of Rs.5,000/- and in default to undergo S.I. for a period of one month. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I. Act in the decision in Anilkumar v. Shammy (2002 (3) KLT 852). In the facts and circumstances of the case, I do not find any compelling reasons - nay except the unworthy defence which the petitioner has taken up in this case, which can persuade this court to insist on imposition of any deterrent substantive sentence of Crl.R.P.No. 599 of 2002 14 imprisonment on the petitioner. I take a lenient view and hold that notwithstanding such unworthy conduct, the petitioner does not deserve to be incarcerated in prison for the indiscretion committed by him, provided he makes amends to adequately compensate the victim. Subject to the compulsion of ensuring adequate and just compensation to the victim/complainant, leniency can be shown to the petitioner, who has been compelled to wait from 1995 and to fight three rounds of legal battle for the redressal of his genuine grievances. The challenge raised on the question of sentence can succeed only to the above limited extent.
20. In the result:
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. ) But the sentence imposed is modified and reduced. In Crl.R.P.No. 599 of 2002 15 supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C. to pay an amount of Rs.1,35,000/- (Rupees one lakh thirty five thousand only) as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant.
9. The petitioner shall appear before the learned Magistrate on or before 31.10.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed. (R. BASANT) Judge tm Crl.R.P.No. 599 of 2002 16
R. BASANT, J.Crl.R.P.No. 599 of 2002 Crl.R.P.No. 599 of 2002 17
O R D E R24th August, 2006
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