Kerala High Court
K.K.Swaminathan *(Expired) vs State Of Kerala on 5 August, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
CRL.REV.PET NO. 976 OF 2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947
CRL.REV.PET NO. 976 OF 2012
AGAINST THE JUDGMENT DATED 23.02.2012 IN CRL.A NO.227
OF 2010 OF ADDITIONAL SESSIONS COURT (ADHOC-I), KOTTAYAM
ARISING OUT OF THE JUDGMENT DATED 30.04.2010 IN ST NO.2626
OF 2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II (MOBILE,
KOTTAYAM
REVISION PETITIONER/APPELLANT/ACCUSED:
1 K.K.SWAMINATHAN (EXPIRED)
VIDHYA BHAVAN, PANTHALAM (P.O),
PATHANAMTHITTA
2 *ADDITIONAL 2ND REVISION PETITIONER IMPLEADED
SHINE SWAMINATHAN
AGED 51 YEARS, S/O. K.K. SWAMINANTHAN,
VIDHYA BHAVAN, PANTHALAM P.O.,
PATHANAMTHITTA (IS IMPLEADED AS ADDITIONAL 2ND
PETITIONER VIDE ORDER DATED 14.07.2025 IN
CRL. M.A. 1/2020)
BY ADVS.
SHRI.M.V.THAMBAN
SRI.B.BIPIN
SRI.R.REJI
SMT.THARA THAMBAN
CRL.REV.PET NO. 976 OF 2012
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RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682031
2 P. RAJU
PULLANA PATHIL HOUSE, KUDAMALOOR (PO),
KOTTAYAM 686017
BY ADVS.
SHRI.T.R.HARIKUMAR
OTHER PRESENT:
SMT.MAYA M.N-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 05.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.REV.PET NO. 976 OF 2012
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ORDER
The 2nd respondent herein filed a private complaint against
the original revision petitioner as S.T.No.2626 of 2009 on the
files of the Judicial First Class Magistrate Court-II (Mobile)
Kottayam under Section 142 of the Negotiable Instruments Act,
1881 (for short, 'the NI Act') alleging the offence punishable
under Section 138 of the NI Act.
2. The case in the complaint is that the original revision
petitioner issued Ext.P1 cheque to the 2 nd respondent in
discharge of the amount borrowed by him for his business
purpose, which, on presentation, was dishonoured for want of
sufficient funds. Even though a statutory notice under Section
138(b) of NI Act was issued, there was no compliance. Hence,
the prosecution was launched.
3. Before the trial court, the 2nd respondent was
examined as PW1 and Exts.P1 to P12 were marked. The original
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revision petitioner was examined as DW1. After trial, the trial
court found the original revision petitioner 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
six months and to pay a compensation of Rs.18,04,000/- to the
complainant/2nd respondent under Section 357(3) of Cr.P.C., in
default to suffer simple imprisonment for a period of six months.
The original revision petitioner challenged the conviction and
sentence of the trial court before the Additional Sessions Court
(Adhoc-I), Kottayam (for short, 'the appellate court') in
Crl.Appeal No.227 of 2010. The appellate court dismissed the
appeal. This revision petition has been filed by the original
revision petitioner challenging the judgments of the trial court as
well as the appellate court. During the pendency of this revision
petition, the original revision petitioner died and his legal heir
has been impleaded as the additional 2nd revision petitioner.
4. I have heard Sri.M.V.Thamban, the learned counsel
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for the additional 2nd revision petitioner, Sri.T.R.Harikumar, the
learned counsel for the 2nd respondent and Smt.Maya M.N, the
learned Public Prosecutor.
5. The learned counsel for the additional 2nd revision
petitioner submitted that the 2nd respondent failed to prove the
transaction, execution and issuance of the cheque and hence the
trial court went wrong in drawing the presumption under
Sections 118 and 139 of the NI Act in his favour. The counsel
further submitted that the defence evidence adduced through
DW1 is more probable and hence the conviction is
unsustainable.
6. The learned counsel for the 2nd respondent on the
other hand, supported the findings and verdict handed down by
the trial court as well as the appellate court and argued that
necessary ingredients of Section 138 of the NI Act have been
established and the impugned conviction and sentence do not
warrant any interference. The learned counsel further submitted
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that re-appreciation of evidence is not permissible in revision.
7. To prove the case of the complainant, the 2nd
respondent himself gave evidence as PW1. Exts.P1 to P12 were
marked. PW1 gave evidence in tune with the averments in the
complaint. As stated already, the definite case of the 2 nd
respondent is that he and the original revision petitioner knew
each other and the original revision petitioner had borrowed a
total sum of Rs.18,04,000 from him on different occasions and
towards the discharge of the same, Ext.P1 cheque was issued.
It is the definite case of the 2nd respondent that a portion of the
amount was given by him to the original revision petitioner
through cheques as well. To prove the same, Exts.P6 to P12, the
statement of account and pay in slips were marked. Even though
PW1 was cross examined in length, nothing tangible could be
extracted from his testimony to discredit his version.
8. When PW1 was examined, the defence did not dispute
the signature in Ext.P1 cheque. The suggestion put to PW1 was
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that the 2nd respondent had illegally obtained Ext.P1 cheque. He
had no consistent defence version during the examination of
PW1. The original revision petitioner himself gave evidence as
DW1. In the chief examination, he did not state anything as to
how Ext.P1 cheque came into the possession of the 2 nd
respondent. In cross examination, he has specifically admitted
his signature in Ext.P1 cheque. When a specific question was put
by the counsel for the 2nd respondent during the cross
examination, DW1 answered that he cannot say whether Ext.P1
cheque was issued towards the discharge of the amount
borrowed by him from the 2nd respondent. The 2nd respondent
had succeeded in proving the transaction, execution and issuance
of the cheque. No satisfactory rebuttal evidence has been
adduced by the additional 2nd revision petitioner to rebut the
presumption available to the 2nd respondent under Sections 118
and 139 of the NI Act. Therefore, I see no reason to interfere with
the concurrent finding of conviction. Since the original revision
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petitioner has expired, the substantive sentence cannot be
sustained against the supplemental/additional 2 nd revision
petitioner. However, the additional 2nd revision petitioner is
liable to pay the compensation amount granted by the trial court
and confirmed by the appellate court. Hence, the sentence is
modified. The additional 2nd revision petitioner is directed to pay
the compensation amount of Rs.18,04,000/- (Rupees Eighteen
lakhs and four thousand only) to the 2 nd respondent within a
period of nine months from today.
The criminal revision petition is disposed of as above.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
