Kerala High Court
Sajimon.K.A vs Kuruvilla Mani on 8 July, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.Rev.Pet. No.793 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.REV.PET NO. 793 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 27.08.2021 IN Crl.A
NO.190 OF 2019 OF ADDITIONAL SESSIONS COURT - V, KOTTAYAM
ARISING OUT OF THE ORDER/JUDGMENT DATED 27.11.2019 IN ST
NO.1488 OF 2015 OF JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM
REVISION PETITIONER/APPELLANT/ACCUSED:
SAJIMON.K.A.,
AGED 41 YEARS
S/O. ANIYAPPAN.M., KANJIRATHIL HOUSE,
PUTHANANGADI, KOTTAYAM DISTRICT
BY ADVS.
SRI.P.MOHAMED SABAH
SMT.SAIPOOJA
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 KURUVILLA MANI,
S/O. MANI, PROPRIETOR, M/S. MANARCADU FUELS
MANARCADU P.O., KOTTAYAM DISTRICT 683 561.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA ERNAKULAM 682 031.
Crl.Rev.Pet. No.793 of 2021
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BY ADVS.
SRI.ANANTHAKRISHNAN A. KARTHA
SRI.ANIL D.KARTHA
SHRI.SURESH G.
SHRI.SHARATH ELDO PHILIP
SMT.NAMITA PHILSON
SHRI.SREEKUMAR G.
SHRI.ANANTHASANKAR A. KARTHA
THIS CRIMINAL REVISION PETITION HAVING FINALLY HEARD
ON 02.07.2025, THE COURT ON 08.07.2025 DAY DELIVERED THE
FOLLOWING:
Crl.Rev.Pet. No.793 of 2021
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P.V.KUNHIKRISHNAN, J
--------------------------------
Crl.Rev.Pet. No.793 of 2021
-------------------------------
Dated this the 08th day of July, 2025
ORDER
The revision petitioner is the accused in S.T. No.1488/2015 on the file of the Judicial First Class Magistrate Court-III, Kottayam. It is a prosecution initiated against the petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'). The revision petitioner is the accused and the 1st respondent herein is the complainant in the above case. (hereinafter parties are mentioned in accordance with their status before the trial court).
2. The case of the complainant is as follows:
The accused had money transaction with the complainant. The accused, in discharge of his legally enforceable debt towards the complainant, issued a cheque Crl.Rev.Pet. No.793 of 2021 4 2025:KER:49453 dated 16.66.2015 of HDFC Bank, ATPAR Branch, Kottayam for Rs.12 lakhs. The complainant presented the cheque through its bankers SBT, Manarcadu. The cheque was dishonoured for the reason "Funds Insufficient." On 05.09.2015, the Bank intimated the complainant on dishonouring of the cheque. On 15.09.2015, the complainant issued a registered Lawyer's Notice to the accused. On 01.10.2015, the accused received the notice. The accused, however, did not pay the cheque amount and therefore, committed an offence under section 138 of the Negotiable Instruments Act.
3. To substantiate the case, PW1 to PW4 were examined. Exts.P1 to P9 were marked on the side of the complainant. After going through the evidence and documents, the trial court found that the accused is guilty of the offence under Section 138 of the NI Act and he was directed to undergo simple imprisonment till the rising of the court and to pay a fine of Rs.12,50,000/- (Rupees Twelve Crl.Rev.Pet. No.793 of 2021 5 2025:KER:49453 lakh fifty thousand only). In default of payment of fine, the accused was directed to undergo simple imprisonment for five months. If the fine amount is realized, there was a direction to the accused to pay the same to the complainant as compensation. Aggrieved by the conviction and sentence, the accused filed an appeal before the Additional Sessions Court-V, Kottayam. The Additional Sessions Judge, after going through the evidence and documents confirmed the conviction and sentence. Aggrieved by the same, this Criminal Revision Petition is filed.
4. Heard the learned counsel appearing for the petitioner/accused, the learned counsel appearing for the 1 st respondent/complainant and the learned Public Prosecutor.
5. Counsel for the petitioner/accused filed an argument note. The counsel submitted that the execution of the cheque is not proved in this case. It is also the case of the accused that, even if this Court found that the execution of the cheque is proved, the accused has rebutted the Crl.Rev.Pet. No.793 of 2021 6 2025:KER:49453 presumption under Section 138 of the NI Act by cross- examining the complainant. Several contentions were raised by the counsel for the petitioner/accused to support the above two grounds.
6. Counsel appearing for the 1st respondent/complainant supported the impugned judgments and submitted that there is nothing to interfere with the impugned judgments.
7. This Court considered the contentions of the accused, the complainant and the Public Prosecutor. The first point raised by the accused is that the execution of the cheque is not proved. According to the accused, PW2 is the witness relied on by the complainant to prove the execution of the cheque. It is submitted that, he is not a reliable witness. It is also submitted that PW2 is an interested witness and he is a friend of PW1. As far as the execution of a cheque is concerned, only the friends or relatives of PW1 will be available at that time. This Court cannot say that Crl.Rev.Pet. No.793 of 2021 7 2025:KER:49453 independent witness should be present at the time of execution of the cheque. The trial court and the appellate court concurrently found that the execution of the cheque is proved in the light of the evidence of PW1 and PW2. The jurisdiction of the revisional court is very limited. This Court need not re-appreciate the evidence unless there is illegality, irregularity and impropriety. Several circumstances were pointed out by the counsel for the petitioner/accused after taking me through the evidence adduced by PW2. I am of the considered opinion that this Court cannot re-appreciate the evidence. There is nothing to interfere with the concurrent finding of the trial court and the appellate court as far as the execution of the cheque is concerned.
8. The next contention raised by the accused is that the accused has rebutted the presumption under Section 139 of the NI Act. But I cannot agree with the same. Once the execution of the cheque is proved, the Crl.Rev.Pet. No.793 of 2021 8 2025:KER:49453 presumption under Section 139 of the NI Act is attracted. Admittedly, the accused has not adduced any evidence to rebut the presumption. The contention of the accused is that, by cross examining the witnesses by the complainant, the presumption is rebutted. This Court carefully perused the deposition of the witnesses which is made available by the counsel for the petitioner/accused. I am of the considered opinion that no material is brought out by the accused to rebut the presumption.
9. Counsel for the petitioner/accused relied on the judgment of this Court in Ahammed P.K. v. State of Kerala [2024 (3) KHC 176] and submitted that, when a part payment of the debt is paid after the cheque was drawn, but before the cheque is encahsed, such payment must be endorsed in the cheque under Section 56 of the NI Act and the cheque cannot be presented for encashment without recording the part payment. Counsel for the petitioner/accused submitted that, in page No.5 of the Crl.Rev.Pet. No.793 of 2021 9 2025:KER:49453 deposition of PW1, it is stated that the accused had made part payment towards his liability. But there is nothing to show that it was a part payment of the debt after the cheque was drawn but before the cheque was encashed. In such circumstances, the dictum laid down by this Court is not applicable to the facts and circumstances of the case. Therefore, I am not in a position to accept the contention of the accused that the presumption under Section 139 of the NI Act is rebutted. From an overall perusal of the entire evidence adduced by the complainant, it is clear that the complainant proved the ingredients of the offence under Section 138 of the NI Act. The accused has not send any reply to the statutory notice. No defence evidence is also adduced by the accused. In such circumstances, I am of the considered opinion that there is nothing to interfere with the conviction and sentence imposed by the trial court and the appellate court.
10. The jurisdiction of this Court to interfere with Crl.Rev.Pet. No.793 of 2021 10 2025:KER:49453 the concurrent finding of conviction and sentence invoking the powers of revisional jurisdiction is very limited. Unless there is illegality, irregularity and impropriety, this Court need not interfere with the concurrent finding of conviction and sentence. This Court anxiously considered the impugned judgments and the contentions of the Revision petitioner. I am of the considered opinion that there is nothing to interfere with the conviction and sentence imposed on the petitioner. The trial court and the appellate court considered the entire evidence and thereafter found that the petitioner is guilty under Section 138 of the NI Act. Therefore, there is nothing to interfere with the conviction and sentence imposed under Section 138 of the NI Act.
Therefore, this Criminal Revision Petition is dismissed, confirming the conviction and sentence imposed on the petitioner as per the impugned judgments. Ten months time is granted to pay the amount and to serve the sentence. All coercive steps against the petitioner shall be Crl.Rev.Pet. No.793 of 2021 11 2025:KER:49453 kept in abeyance during the above period.
If any amount is already deposited before the trial court, the same will be adjusted towards the fine amount, and the same should be disbursed to the 1 st Respondent in accordance with law.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE DM