Santhosh vs Shabu
2023 Latest Caselaw 10518 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
              CRL.REV.PET NO. 1016 OF 2023
  AGAINST THE JUDGMENT IN CC.47/2018 OF JUDICIAL FIRST
           CLASS MAGISTRATE COURT-II, CHITTUR
 CRA.152/2021 OF ADDITIONAL SESSIONS COURT-V, PALAKKAD


REVISION PETITIONER:

         SANTHOSH
         AGED 32 YEARS
         S/O.LATE.CHAMIYAR,
         THEETHAN HOUSE, KOOTALA POST,
         KUNISSERI, ALATHUR,
         PALAKKAD, PIN - 678704

         BY ADV V.A.JOHNSON (VARIKKAPPALLIL)


RESPONDENTS:

    1    SHABU
         AGED 25 YEARS
         S/O.IQBAL, ANAMALA HOUSE,
         BEHIND KODUVAYUR GOVT. HOSPITAL,
         KODUVAYUR, CHITTUR,
         PALAKKAD, PIN - 678501

    2    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA,
         ERNAKULAM, PIN - 682031

         BY SRI.N.R.SANGEETH RAJ, PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 Crl.R.P. No.1016/2023
                                        :2:




                            N. NAGARESH, J.

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                        Crl.R.P. No.1016 of 2023

           `````````````````````````````````````````````````````````````
               Dated this the 16th day of October, 2023


                                  ORDER

~~~~~~

The revision petitioner is accused in CC

No.47/2018 of the Judicial First Class Magistrate's Court-II,

Chittur and the appellant in Criminal Appeal No.152/2021 of

the Sessions Court, Palakkad.

2. The petitioner stands convicted and sentenced for

offence punishable under Section 138 of the Negotiable

Instruments Act.

3. The 1st respondent-complainant filed the complaint

alleging that the petitioner borrowed an amount of ₹1 lakh

from the 1st respondent for his business needs and issued a

cheque bearing No.4258 drawn on South Indian Bank,

Thrippalur Branch. The cheque, when presented, was Crl.R.P. No.1016/2023

dishonoured for insufficient funds. The notice issued by the

1st respondent was not responded to and the cheque

amount remained unpaid. The petitioner therefore

committed offence punishable under Section 138 of the

Negotiable Instruments Act.

4. The 1st respondent examined himself as PW1 and

marked Exts.P1 to P4 documents. The petitioner was

questioned under Section 313 Cr.P.C. On appreciation of

evidence, the Magistrate found that the petitioner executed

Ext.P1 cheque in favour of the 1 st respondent for discharge of

a legally enforceable debt and that the 1 st respondent had

complied with statutory requirement under Section 138 of the

Negotiable Instruments Act to give rise to a cause of action.

The Magistrate Court found that the 1 st respondent has

proved the guilt of the petitioner for the offence punishable

under Section 138 of the Negotiable Instruments Act.

Accordingly, the petitioner was convicted and sentenced to

undergo simple imprisonment till the rising of the court and to

pay an amount of ₹1 lakh as fine. It was ordered that if Crl.R.P. No.1016/2023

realised, the fine shall be given to the 1 st respondent as

compensation. In default of payment of the fine amount, the

petitioner was ordered to undergo simple imprisonment for

six months.

5. The petitioner filed Criminal Appeal No.152/2021.

The Sessions Court considered the arguments of the

petitioner and held that Ext.P1 cheque was issued by the

petitioner in discharge of a legally enforceable debt. The

Sessions Court also found that the 1 st respondent had

complied with all statutory requirements before filing

complaint before the Magistrate's Court and the 1 st

respondent has succeeded in proving the guilt of the

petitioner. The Sessions Court therefore upheld the

conviction and sentence passed against the petitioner by the

Magistrate Court.

6. The petitioner argued that the judgments of the

courts below are against law and facts. The courts below

proceeded on a fallacious assumption that the prosecution

has successfully led evidence to conclusively establish the Crl.R.P. No.1016/2023

essential ingredients of the offence which the revision

petitioner was called upon to answer.

7. The petitioner further argued that the courts below

ought to have found that there was no monetary transaction

between the petitioner and the 1 st respondent as alleged in

the complaint. The courts below ignored the fact that the 1 st

respondent could not satisfactorily explain his source of

income. The courts below ought to have been insisted for

independent corroboration of the liability of the petitioner and

for due execution of the cheque.

8. I have heard the learned counsel for the petitioner

and the learned Public Prosecutor representing the 2 nd

respondent.

9. The allegation of the 1st respondent is that the

petitioner borrowed an amount of ₹1 lakh from him for

business need and a cheque of the South Indian Bank,

Thrippalur Branch was issued to him towards repayment.

The 1st respondent presented the cheque for collection on

21.01.2013 to the SBT, Koduvayur Branch. The cheque was Crl.R.P. No.1016/2023

returned for insufficient funds. Exts.P1 to P3 would prove

that the cheque when presented was dishonoured for want of

funds. Exts.P4 series documents would establish that the 1 st

respondent had satisfied all statutory formalities before filing

the complaint.

10. The 1st respondent-complainant was examined as

PW1 and PW1 gave evidence in the lines of the complaint.

The petitioner could not discredit the testimony of PW1 in

any manner. The defence attempted to be projected by the

petitioner was that the cheque was issued by the petitioner to

one Abdul Hakkim, who is friend of 1 st respondent's father,

and the said cheque was misused by the 1 st respondent.

The petitioner failed to establish his defence and rebut the

presumption drawn in favour of the 1st respondent under

Sections 139 and 118 of the Negotiable Instruments Act.

11. The petitioner contended that he issued cheque to

one Abdul Hakkim in connection with a property transaction

under which the petitioner's property was sold to the said

Abdul Hakkim. The courts below observed that when a Crl.R.P. No.1016/2023

property transaction was made by the petitioner alienating

his property, the petitioner need not pass any consideration

or issue any cheque in favour of the buyer. Money is paid or

cheque is issued normally by the buyer of the land who is

liable to pass consideration.

12. From the evidence, it is clear that the petitioner

has admitted his signature on the cheque. The execution of

the cheque stands proved by the testimony of PW1. The

statutory requirements for filing complaint under Section 138

also stand proved by Ext.P4 series documents. Therefore, I

do not find any reason to interfere with the judgments of the

courts below.

13. However, taking into consideration the facts of the

case, I am inclined to grant four months time to the petitioner

to deposit the fine amount.

14. Therefore, while upholding the conviction and

sentence passed by the Judicial First Class Magistrate's

Court-II, Chittur, the petitioner is granted four months time

from today to pay the fine amount of ₹1 lakh. The petitioner Crl.R.P. No.1016/2023

is directed to appear before the Judicial First Class

Magistrate's Court-II, Chittur for undergoing the sentence on

16.02.2024.

The Criminal Revision Petition is disposed of as

above.

Sd/-

N. NAGARESH, JUDGE aks/19.10.2023