Kerala High Court
Jacob George vs Santhosh on 21 July, 2025
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:54025
CRL.REV.PET NO. 124 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.REV.PET NO. 124 OF 2023
AGAINST THE JUDGMENT DATED 17.10.2022 IN Crl.A NO.306 OF
2020 OF THE COURT OF ADDITIONAL DISTRICT & SESSIONS JUDGE,
MUVATTUPUZHA ARISING OUT OF THE JUDGMENT DATED 18.11.2020
IN CC NO.450 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT - III (TEMPORARY), MUVATTUPUZHA
REVISION PETITIONER/APPELLANT/ACCUSED:
JACOB GEORGE
AGED 62 YEAR, S/O.GEORGE, PUNNACHALIL HOUSE,
THIRUVAMKULAM KARA, THIRUVANKULAM P.O,
THIRUVAMKULAM VILLAGE, KANAYANNOORTALUK,
ERNAKULAM DISTRICT, PIN - 682035
BY ADVS.
SRI.AJITH VISWANATHAN
SHRI.SHIBU JOSEPH
SHRI. SAYED MANSOOR BAFAKHY THANGAL
SHRI.M.SRIRAM
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 SANTHOSH
S/O.RAJU, MANGALATH HOUSE, SOUTH MAZHAVANNOOR
VILLAGE, PIN - 683541
2025:KER:54025
CRL.REV.PET NO. 124 OF 2023
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2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
SRI.P.M.SANEER
SRI.SHAJIN S.HAMEED
SMT.NITHYA R.
SMT.S.SEETHA, SR PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:54025
CRL.REV.PET NO. 124 OF 2023
3
P.V. KUNHIKRISHNAN, J.
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Crl.R.P. No.124 of 2023
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Dated this the 21st day of July, 2025
ORDER
This criminal revision petition is filed against the judgment dated 17.10.2022 in Criminal Appeal No.306/020 of the Court of Additional District & Sessions Judge, Muvattupuzha arising out of the judgment dated 18.11.2020 in CC No.450/2019 of the Judicial First Class Magistrate Court (Temporary), Muvattupuzha. As per the impugned judgment, the revision petitioner was found guilty under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'). The 1st respondent is the complainant. Hereinafter the revision petitioner and the 1st respondent are mentioned as accused and complainant
2. The complainant's case in brief are as follows:
Complainant is doing fabrication works of ships in Cochin Shipyard in the name and style as Excellent Ship Builders along 2025:KER:54025 CRL.REV.PET NO. 124 OF 2023 4 with his friend one Rijo. On 21.01.2013 Complainant and his friend Rijo entered an agreement with the accused to purchase his property for Rs.58 lakhs and paid a total amount of Rs Rs.52,02,864/- towards the sale consideration. On the failure to effect the said sale, the parties entered an settlement agreement on 03.03.2017, whereby the accused agreed to pay Rs. 45 lakhs to the complainant. As per the said settlement agreement, the accused on 25.09.2017 issued a cheque for Rs.
45 lakhs bearing No. 197162 of Indian Bank, Thiruvankulam dated 25.09.2017 in favour of the complainant. On presentation for encashment the said cheque was dishonoured due to Funds insufficient and the accused failed to pay the cheque amount even after the receipt of demand notice mandated u/s138(b)of NI Act. Hence this complaint.
3. To substantiate the case, the complainant examined PWs 1 to 3. Exts.P1 to P6 are marked from the side of the complainant. On the side of the defence, DW1 was examined and Exts.D1 to D3 are the documents adduced by the defence. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 2025:KER:54025 CRL.REV.PET NO. 124 OF 2023 5 138 of the NI Act and he was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.45,00,000/- (Rupees Forty Five Lakhs only) to the complainant under Section 357(3) Cr.P.C. In default of payment of the compensation amount, the accused was directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, an appeal is filed before the Sessions Court. The Additional District & Sessions Court, Muvattupuzha considered the appeal and modified the substantive sentence of six months to till rising of the court. The default sentence already granted by the trial court is confirmed by the appellate court. Aggrieved by the same, this revision petition is filed.
4. Heard the learned counsel appearing for the revision petitioner, learned counsel for the 1 st respondent and the learned Public Prosecutor.
5. The counsel for the accused raised a short point. The counsel submitted that admitted case of the accused is that the amount due is to the complainant and another. If that is the case, without any authorization from the other person, the complainant cannot prosecute the case. The accused relied on 2025:KER:54025 CRL.REV.PET NO. 124 OF 2023 6 the judgment of this Court in Sunil K.J. v. State of Kerala and Another [2020 (4) KHC 347]. The counsel for the complainant submitted that there is authorization from the other person and the same was produced before the trial court, but that is not marked.
6. This Court considered the contentions of the complainant and the accused. This Court perused the judgment of this Court in Sunil K.J's case (Supra). The relevant portion of the judgment is extracted hereunder:
"A reading of Section 138 of the Negotiable Instruments Act, it is clear that, when a person draws a cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part of any debt or other liability is returned by the bank for the reasons mentioned in the provision, and the other statutory conditions have complied, the offence under Section 138 of the Negotiable Instruments Act is attracted. In Section 138 of the Negotiable Instruments Act, it is stated that 'any amount of money to another person'. The question is whether there can be issuance of cheque to a person for the payment of money to several persons. A reading of Section 138 2025:KER:54025 CRL.REV.PET NO. 124 OF 2023 7 of the Negotiable Instruments Act, it is clear that, a cheque can be issued for the payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability. Another person can be only an individual. Of course, he can represent several others if there is an authorization to him by the other persons to accept the cheque on behalf of others. It can be by way of power of attorney by the other persons to the payee or the holder in due course of the cheque. It can also be by way of different modes of authorization. If the cheque is dishonoured, the prosecution can be initiated by the 'payee' or 'the holder in due course' of the cheque alone. But the 'payee' or the 'holder in due course' can prosecute a complaint in such a situation only if there is an authorization to him by the other persons. The other persons can also adduce evidence before the court that, the payee or the holder in due course received the cheque on their behalf. But without a power of attorney or authorization or any other evidence authorising the payee or the holder in due course, he cannot accept the cheque on behalf of others and prosecute a complaint. Similarly, to succeed in prosecution, the other persons should adduce admissible oral or documentary evidence showing authorization. "
7. In the light of the above principle, I think there is 2025:KER:54025 CRL.REV.PET NO. 124 OF 2023 8 force in the argument of the accused. But the counsel for the complainant submitted that he already produced the authorization from the other person and the same is not marked. Considering the facts and circumstances of the case and also considering the amount involved in the cheque, I think one more opportunity can be given to the complainant to produce additional documents. The counsel for the accused submitted that the accused is now undergoing default sentence. If that is the case, there can be a direction to release him forthwith.
Therefore, this revision petition is allowed with following directions:
1. The judgment dated 17.10.2022 in Criminal Appeal No.306/020 of the Court of Additional District & Sessions Judge, Muvattupuzha and the judgment dated 18.11.2020 in CC No.450/2019 of Tthe Judicial First Class Magistrate Court (Temporary), Muvattupuzha are set aside and the case is remanded to the trial court.
2025:KER:54025 CRL.REV.PET NO. 124 OF 2023 9
2. The Judicial First Class Magistrate Court-III (Temporary), Muvattupuzha will proceed with CC No:450/2019 in accordance with law. I make it clear that no denovo trial is necessary. But the complainant and the accused should be given an opportunity to adduce further evidence, if any. Thereafter the Magistrate can proceed in accordance with law.
3. The revision petitioner/accused shall be released forthwith, if his detention is not necessary in any other case.
4. The Magistrate will try to dispose the case, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE