Kerala High Court
C. Anilkumar vs State Of Kerala on 25 April, 2025
2025:KER:33144
CRL.REV.PET NO. 74 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 25TH DAY OF APRIL 2025 / 5TH VAISAKHA, 1947
CRL.REV.PET NO. 74 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 16.04.2024 IN Crl.A
NO.250 OF 2023 OF ADDITIONAL SESSIONS COURT, NEYYATTINKARA
ARISING OUT OF THE ORDER/JUDGMENT DATED 14.11.2023 IN ST
NO.2507 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,KATTAKADA
REVISION PETITIONER/APPELLANT/ACCUSED:
C. ANILKUMAR,
AGED 53 YEARS
S/O CHANDRASEKHARAN NAIR, VAYAL NIKATHIYA PUTHEN
VEEDU, T.C 25/1110, THAMPANOOR, THAMPANOOR.P.O,
THIRUVANANTHAPURAM, PIN - 695001
BY ADV M.R.SARIN
RESPONDENTS/RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 PADMAKUMAR.J,
SARADS MANDIRAM, KEEZHMACHEL, KURUTHAMCODE.P.O,
KULATHUMAL VILLAGE, THIRUVANANTHAPURAM,, PIN -
695572
SRI.H.KIRAN
SRI. VIPIN NARAYAN, SR.PUBLIC PROSECUTOR
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CRL.REV.PET NO. 74 OF 2025
2
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 25.04.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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CRL.REV.PET NO. 74 OF 2025
3
K. V. JAYAKUMAR, J
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Crl. Rev.Pet. No.74 of 2025
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Dated this the 25th day of April, 2025
ORDER
This criminal revision petition is preferred impugning the
judgment of the learned Additional District & Sessions Judge,
Neyattinkara in Crl.Appeal No.250/2023 dated 16.04.2024.
2. The revision petitioner herein was the accused in S.T.
No.2507/2016 of the Judicial First Class Magistrate Court, Kattakada and
the appellant in Crl.Appeal No.250/2023.
3. The revision petitioner faced prosecution for the
offence punishable under Section 138 of the Negotiable Instruments Act
[hereinafter referred to as 'the Act']. The 2 nd respondent is the
complainant.
4. The case of the 2nd respondent complainant is that,
the accused had borrowed an amount of Rs.1,50,000/- from him and
towards the discharge of the said liability, the accused had issued a
cheque dated 15.03.2016.
5. On presentment, the cheque was returned unpaid
stating the reason 'funds insufficient' .
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CRL.REV.PET NO. 74 OF 2025
6. The complainant issued a statutory notice and
thereafter filed the complaint.
7. In order to prove his case, the complainant has
examined as PW1 and Exts.P1 to P5 were marked. Thereafter, the accused
was examined under Section 313(1)(b) of the Code of Criminal Procedure.
The trial court, upon hearing the revision petitioner and the 2 nd
respondent, convicted and sentenced the accused in the following
manner:
""Accused is convicted under Section 255(2) of the Code of
Criminal Procedure, 1973 for the offence punishablel under
Section 138 of the Negotiable Instruments Act, 1881 and
senter;ced him to undergo simple imprisonment for a period of
seven days and to pay an amount of Rs. 3,00,000/- (Rupees three
lakh only) being twice of the cheque amount as fine and in
default of payment of fine amount accused shall undergo simple
mprisonment for further three months and the fine amount, if
realized, shall be paid to the complainant as compensation under
Section 357(1)(b) of the Code of Criminal Procedure, 1973".
8. Aggrieved by the judgment of the trial court, the
accused approached the Sessions Court and preferred Crl.Appeal
No.250/2023.
9. The learned Additional District & Sessions Judge,
Neyyattinkara modified and reduced the sentence to imprisonment till
rising of the court and to pay a fine of Rs. 1,50,000/- being the cheque
amount and in default of payment, of fine, accused shall undergo simple
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CRL.REV.PET NO. 74 OF 2025
imprisonment for a period of three months, if the fine amount is realized the
same shall be paid to complainant as compensation U/S 357(1)(b) Cr.P.C.
10. Aggrieved by the judgment of the learned Sessions
Judge, accused preferred this revision petition.
11. I have heard the learned counsel for the revision
petitioner and the respondents.
12. Learned counsel for the 2nd respondent would submit
that the impugned judgment of the learned Sessions Judge is legally
sustainable and no interference from this Court is warranted. The
complainant has succeeded in proving the ingredients of Section 138 of
the Act, beyond reasonable doubt. Moreover, the transaction is a genuine
one. Both the trial court and appellate court have correctly appreciated
the evidence on record and arrived at a proper conclusion.
13. Per contra, the learned counsel for the revision
petitioner would submit that the ingredients of Section 138 of the
Negotiable Instruments Act are not satisfied by the complainant. The
court below had failed to note that there is no legally enforceable debt as
against the petitioner. The disputed cheque was not issued towards the
discharge of legally enforceable debt.
14. It is further submitted that the disputed cheque was
not supported by consideration. The trial court and appellate court ought
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CRL.REV.PET NO. 74 OF 2025
not have invoked the presumption under Section 139 of the Act.
15. The appreciation of evidence by the trial court and the
appellate court are wrong and incorrect. The execution of the cheque is
not proved by the complainant.
16. The complainant has failed to discharge the initial
burden as to the drawal, execution and the handing over the cheque.
Moreover, the revision petitioner has succeeded in rebutting the
presumption provided under Section 139 of the Act by a lesser standard of
preponderance of probability.
17. The learned counsel for the revision petitioner
submitted that even though he has urged several grounds in the revision
memorandum, he is not intending to argue the matter on merits instead,
the learned counsel seeks 6 months time for effecting payment to the
complainant.
18. Upon hearing the submissions and on perusal of
records, I am of the view that Criminal Revision Petition is to be allowed.
In the result,
(a) The Criminal Revision Petition is
allowed in part.
(b) The sentence of imprisonment till
the rising of the court and default
sentence are maintained.
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CRL.REV.PET NO. 74 OF 2025
(c) The fine awarded and the default
sentence are also maintained.
(d) Six - months time is granted to the
revision petitioner for making
payment.
(e) The court below shall execute the
order in the modified manner.
(f) The revision petitioner shall appear
before the trial court on or before
10.11.2025 to receive the sentence.
Sd/-
K. V. JAYAKUMAR
JUDGE
LEK
