Kerala High Court
Satheesh Kumar vs Prashob Kumar on 9 July, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
CRL.REV.PET NO. 2415 OF 2011
1
2025:KER:50611
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
CRL.REV.PET NO. 2415 OF 2011
AGAINST THE JUDGMENT DATED 06.01.2011 IN CRL.A NO.657
OF 2009 OF III ADDITIONAL SESSIONS COURT KOZHIKODE ARISING
OUT OF THE JUDGMENT DATED 24.09.2009 IN CC NO.810 OF 2007 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -IV, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED :
SATHEESH KUMAR, S/O. PRABHAKARAN NAIR,
REB. TECHNICIAN, ORTHOTIC SECTION,
DEP. OF PHYSICAL MEDICINE & REHABILITATION,
MEDICAL COLLEGE, KOZHIKODE DISTRICT.
BY ADVS.
SRI.JENNIS STEPHEN
SHRI.SANTHOSH MATHEW (SR.)
ADV.SAFNA P.S., AMICUS CURIAE
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 PRASHOB KUMAR
AGED 35 YEARS
S/O.PRASANNA, THARAMMAL HOUSE,
NEAR S.K.TEMPLE, KASABA AMSOM,
CRL.REV.PET NO. 2415 OF 2011
2
2025:KER:50611
DESOM OF KOZHIKODE TALUK
PIN - 673002
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
KOCHI - 682031.
BY ADVS.
SRI.ARJUN SREEDHAR
SRI.JOSEPH GEORGE(MULLAKKARIYIL)
SRI.P.S.SREEDHARAN PILLAI
OTHER PRESENT:
SRI.SANGEETHA RAJ N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 09.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
CRL.REV.PET NO. 2415 OF 2011
3
2025:KER:50611
ORDER
This criminal revision petition has been filed challenging the concurrent finding of conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act (for short, 'the NI Act').
2. The revision petitioner is the accused and the 1 st respondent is the complainant. The 1st respondent filed a private complaint against the petitioner under Section 142 of the NI Act as C.C.810 of 2007 before the Judicial First Class Magistrate Court-IV, Kozhikode (for short, 'the trial court'). The case of the 1st respondent is that the petitioner borrowed a sum of Rs.1,00,000/- from him on 30.08.2007 agreeing to repay the same within one month and towards the discharge of the said debt, Ex.P1 cheque was issued, which, on presentation, was dishonoured for want of sufficient funds. Ext.P4 lawyer notice issued under Section 138(b) of NI Act was returned as unclaimed CRL.REV.PET NO. 2415 OF 2011 4 2025:KER:50611 by the petitioner. Hence the prosecution was launched.
3. Before the trial court, the 1st respondent himself gave evidence as PW1 and Exts.P1 to P6 were marked. On the side of the defence, one witness was examined as DW1 and Exts.D1 to D4 were marked. After trial, the trial court found the accused guilty under Section 138 of the NI Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.1,00,000/- to the 1st respondent under Section 357(3) of Cr.P.C, in default to suffer simple imprisonment for a period of one month. The petitioner challenged the conviction and sentence of the trial court before the IIIrd Additional Sessions Court, Kozhikode (for short, 'the appellate court') in Crl.Appeal No.657 of 2009. The appellate court dismissed the appeal and confirmed the conviction and sentence. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court. CRL.REV.PET NO. 2415 OF 2011 5 2025:KER:50611
4. The learned counsel appearing for the petitioner reported no instructions. Therefore, notice was issued to the revision petitioner. The said notice was returned unserved stating that 'no such person in that address'. Hence, this Court appointed Adv.Safna P.S. as Amicus Curiae to assist the Court.
5. I have heard Adv.Safna P.S., the learned Amicus Curiae, Sri.Arjun Sreedhar, the learned counsel for the 1 st respondent and Sri.Sangeetha Raj N.R, the learned Public Prosecutor. I place on record the appreciation for the able assistance rendered by the Amicus Curiae.
6. To prove the case of the 1st respondent, he himself gave evidence as PW1. He deposed that the petitioner borrowed a sum of Rs.1,00,000/- and towards the discharge of the said debt Ex.P1 cheque was issued. Even though PW1 was cross examined at length, nothing tangible could be extracted from his testimony to discredit the prosecution version. The petitioner admitted the signature in the said cheque. His case is that the CRL.REV.PET NO. 2415 OF 2011 6 2025:KER:50611 cheque in question was issued in blank as a security to the father of the 1st respondent at the time of surrendering the tenancy right of the shop room taken on lease by him and the said cheque was misused when the money advanced to one Chithra through the petitioner was not repaid promptly. In order to substantiate the said defence plea, a witness was examined as DW1 and Exts.D1 to D4 were marked. According to the petitioner, Ext.P1 cheque was given as security to the complainant's father before 2002 at the time of surrendering the shop room taken on rent by him. Exts.D1 to D4 are the documents produced from ICICI Bank, Kozhikode branch. It was marked through DW1, who is the Bank Manager. Ext.D1 is the true copy of cheque leaf status report which would show the details of issuance of cheque book to the petitioner. DW1 deposed that the cheque book containing Ext.P1 cheque was issued to the petitioner on 11.02.2003. Exts.D2 to D4 are the account summary for different periods starting from 11.02.2003 to 31.12.2003. DW1 also deposed that CRL.REV.PET NO. 2415 OF 2011 7 2025:KER:50611 the cheques bearing serial numbers subsequent to Ext.P1 cheque reached the bank in 2003. As stated already, the definite case of the petitioner was that the cheque was handed over to the father of the 1st respondent before 2002. But the evidence adduced by the defence would show that even the account was opened by the petitioner only on 11.02.2003. Therefore, the contention of handing over signed blank cheque prior to 2002 cannot be believed at all. The trial court as well as the appellate court, based on this evidence, concluded that the petitioner has failed to probabilise the defence case set up by him. I see no reason to take a difference view. The 1 st respondent has succeeded in proving the transaction, execution and issuance of the cheque. The petitioner failed to adduce any rebuttal evidence to rebut the presumption available to the 1 st respondent under Sections 118 and 139 of the NI Act. Hence, I find no reason to interfere with the concurrent finding of conviction.
7. What remains is the sentence. The petitioner was CRL.REV.PET NO. 2415 OF 2011 8 2025:KER:50611 sentenced to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.1,00,000/- with a default sentence. Considering the entire facts and circumstances of the case and also the nature of the transaction, I am of the view that the substantive sentence of imprisonment can be reduced to imprisonment till the rising of the court. Hence, the substantive sentence is reduced to imprisonment till the rising of the court and the petitioner is directed to pay a compensation of Rs.1,25,000/- to the 1st respondent under Section 357(3) of Cr.P.C, in default to suffer simple imprisonment for a period of three months.
The Crl.R.P is allowed in part.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE AS