Kerala High Court
Pradeep R Menon vs Sebastian S Edakkara on 8 July, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl. Rev. Pet. No.972 of 2024
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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. 972 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 17.07.2024 IN
Crl.A NO.103 OF 2021 OF IV ADDITIONAL DISTRICT
COURT, THODUPUZHA / II ADDITIONAL MACT/ADDL.RENT
CONTROL APPELLATE AUTHORITY -III, THODUPUZHA ARISING
OUT OF THE ORDER/JUDGMENT DATED IN ST NO.204 OF 2017
OF CHIEF JUDICIAL MAGISTRATE ,THODUPUZHA
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
1 PRADEEP R MENON
AGED 31 YEARS, S/O RABINDRANATH, KADAVATH
HOUSE, RANDAR PO; THOTTAMCHERIL, KAIMATTOM,
MUVATTUPUZHA., PIN - 686661
2 SHEELA
AGED 56 YEARS, W/O RABINDRANATH, KADAVATH
HOUSE, RANDAR PO; THOTTAMCHERIL, KAIMATTOM,
MUVATTUPUZHA, PIN - 686661
BY ADVS.
SRI.M.VIVEK
SMT.RENEETA VINU
Crl. Rev. Pet. No.972 of 2024
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RESPONDENT(S)/RESPONDENTS/COMPLAINANT:
1 SEBASTIAN S EDAKKARA
AGED 56 YEARS, EDAKKARA HOUSE,
MOONNUNKAVAYAL, ARAKKULAM PO, MOOLAMATTOM.,
PIN - 685589
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA,ERNAKULAM, PIN - 682031
BY ADV.
SMT. S. SEETHA, SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 08.07.2025, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Crl. Rev. Pet. No.972 of 2024
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P.V.KUNHIKRISHNAN, J.
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Crl. Rev. Pet. No.972 of 2024
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Dated this the 08th day of July, 2025
ORDER
The above Criminal Revision Petition is filed against the judgment dated 29.11.2021 in ST No.204/2017 on the files of Chief Judicial Magistrate Court, Thodupuzha and the judgment dated 17.07.2024 in Crl. Appeal No.103/2021 on the files of the Additional Sessions Court-IV, Thodupuzha.
2. The revision petitioners are the accused in ST No.204/2017 on the file of the Chief Judicial Magistrate Court, Thodupuzha. It was a prosecution initiated against the petitioners under Section 138 of the Negotiable Instruments Act (for short 'NI Act'). Herein after the revision petitioners are mentioned as accused Nos.1 and 2 respectively and the 1 st Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 4 respondent is mentioned as the complainant. The averments in the complaint which is narrated in paragraph No.2 of the trial court judgment is extracted hereunder:
"2. The complainant is a business man. A1 is an Advocate. A2 is a home maker and the mother of A1. Sri. Ravindranath P., the father of A1 and husband of A2, is a close friend of complainant. The complainant and accused are known to each other. Both accused along with Ravindranath approached complainant and borrowed an amount of Rs. 5,25,000/- from him as a hand loan and promised to return the same as and when demanded by the complainant. When the complainant demanded the amount, the accused jointly issued cheque bearing No. 000104 dated 15.02.2017 drawn on the account maintained jointly in Central Bank of India, Arakkulam branch, for an amount of Rs.5,25,000/- in discharge of the liability. It was signed by both accused. They also promised that they had sufficient fund in their account and cheque Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 5 would be honoured. Though the complainant presented the cheque for encashment at Cental Bank of India, Arakkulam branch, it was dishonoured due to insufficiency of funds in the account of the accused. The Central Bank of India issued memo dated 15.02.2017 in this regard. Intimating the fact of dishonour of cheque and calling upon the accused to pay the debt amount, the complainant sent a legal notice dated 18.02.2017 to the accused. A2 accepted the notice. The legal notice sent to A1 was returned with the endorsement "unclaimed". A1 wilfully evaded the notice. Both accused jointly sent a reply notice stating false and untenable contentions. Thus the accused are alleged to have committed the offence punishable U/s 138 of N I Act."
3. To substantiate the case, two witnesses were examined on the side of the complainant and Exts.P1 to P7 were also marked. Exts.D1 to D3 are the exhibits marked from the side of the accused. After going through the evidence and documents, the trial Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 6 court convicted the accused under Section 138 of the NI Act and the accused are sentenced to undergo simple imprisonment for two months each and to pay a fine of Rs.2,62,500/- each. In default of payment of the fine amount, the accused is directed to undergo simple imprisonment for a period of five months. If the fine amount is realised, there is a direction to give the same to the complainant under Section 357(3) Cr.PC.
4. Aggrieved by the conviction and sentence, the petitioners filed an appeal before the Sessions Court, Thodupuzha. The 4th Additional Sessions Judge, Thodupuzha considered the appeal and confirmed the conviction and modified the sentence. Aggrieved by the same, this revision petition is filed.
5. Heard the learned counsel appearing for the petitioners. Even though, notice is issued to the 1 st respondent, there is no appearance for the 1 st respondent.
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6. The short point raised by the petitioners is that the appellate court has not considered the appeal after applying its mind. A perusal of the appellate court's judgment would show that, the appellate court has not considered the evidence available in the case. The counsel for the petitioners takes me through paragraph Nos.9 and 12 of the appellate court judgment.
7. This Court considered the contentions of the petitioners. It will be better to extract the relevant portion of paragraph No.9 which is pointed out by the petitioners:
"In the instant case, though the appellant received Ext.P3 lawyer notice as evident from the postal receipt, they did not send a reply denying the transaction. If the amount covered by the cheque is not due to the respondent, the appellants could have sent a reply stating that the amount shown in the cheque is exorbitant and no such amount is due from Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 8 them to the 1st respondent. But the appellants willfully evaded from replying to the Ext.P3 lawyer notice. It means they accepted the factum of issuance of Ext.P1 cheque towards a legally recoverable debt due from them. In the above circumstances, the appellants are unsuccessful in denying the execution of the cheque."
8. The learned Sessions Judge proceeded on the basis that there is no reply filed by the petitioners. But here is a case where the accused produced the reply notice as Ext.D1 and Exts.D2 and D3 are also produced to show that it is delivered to the lawyer. Therefore, the above finding of the learned Sessions Judge is without looking into the file records available in the case.
9. Paragraph No.12 of the appellate court's judgment is also extracted hereunder:
"12. In such circumstances, I find no illegality or impropriety in the order of conviction passed by the Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 9 trial court. The learned Magistrate ordered the appellants to pay interest for the amount covered by the cheque. In my view, the 1 st respondent is not entitled for interest as there is no such relief sought for in the complaint. Therefore, the 1st respondent is entitled only to realize the amount covered by the cheque. Hence the sentence is liable to be modified to the extent of reducing the jail sentence to imprisonment till the rising of court and the 1st respondent is entitled to realize the amount covered by the cheque from the appellants. Point Nos. 1 to 3 are found accordingly."
10. The amount covered by Ext.P1 cheque is Rs.5,25,000/-. There are two accused in this case. Therefore, the said amount is directed to be paid by the two accused equally. There is no interest calculated by the trial court while imposing the fine amount. A reading of the above paragraph would show that the interest is also reckoned while fixing the Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 10 fine. These two aspects would show that the appellate court has not applied its mind while considering the appeal. I am of the considered opinion that the appellate court judgment is to be set aside and the appellate court has to reconsider the appeal, in accordance with law.
Therefore, this Crl. Revision Petition is allowed in the following manner:
1. The judgment dated 17.07.2024 in Crl. Appeal No.103/2021 on the file of the IVth Additional Sessions Judge, Thodupuzha is set aside and Crl.
Appeal No.103/2021 is restored to file.
2. The IVth Additional Sessions Judge, Thodupuzha is directed to reconsider Crl. Appeal No.103/2021 and dispose of the same, as expeditiously as Crl. Rev. Pet. No.972 of 2024 2025:KER:50369 11 possible, in accordance with law, after giving an opportunity of hearing to the petitioners and the 1st respondent.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE