[Cites 5, Cited by 0]
Kerala High Court
T.K.Hafsal vs N.P.Pari on 10 December, 2025
2025:KER:93860
Crl.R.P.No.2360/2006
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH AGRAHAYANA,
1947
CRL.REV.PET NO. 2360 OF 2006
AGAINST THE SENTENCE AND CONVICTION DATED 20/03/2006 OF THE
COURT OF SESSIONS, KOZHIKODE IN Crl.A NO.210 OF 2005 FILED
AGAINST JUDGMENT DATED 22/02/2005 OF THE JUDICIAL
MAGISTRATE OF FIRST CLASS -II(MOBILE) KOZHIKODE IN CC
NO.175 OF 2004
PETITIONER/APPELLANT/ACCUSED
T.K.HAFSAL, K.H. AUTO LINKS, A.R. ARCADE,
EAST KOTTAPPARAMBA, CALICUT-673 002.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.P.S.MURALI
RESPONDENTS/RESPONDENTS/COMPLAINT:
1 N.P.PARI
THACHARAKKAL HOUSE, KOVOOR, KOZHIKODE DISTRICT.
2 STATE OF KERALA REP. BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA.
BY ADVS.
SRI.M.MUHAMMED SHAFI FOR R1
SRI.P.SANJAY
ADV.MS.AMRIN FATHIMA (AMICUS CURIAE)
SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 17.11.2025, THE COURT ON 10.12.2025 DELIVERED THE
FOLLOWING:
2025:KER:93860
Crl.R.P.No.2360/2006
2
ORDER
The concurrent findings of the Judicial First Class Magistrate
Court-II, Kozhikode and the Additional Sessions Court-I, Kozhikode,
holding the petitioner guilty of commission of offence under Section
138 of the Negotiable Instruments Act (for short, 'the N.I Act'), are
under challenge in this revision petition. The learned Magistrate had
sentenced the petitioner to simple imprisonment for five months
with a direction to pay compensation Rs.1,60,000/- under Section
357(3) Cr.P.C to the complainant. The Appellate Court upheld the
conviction but modified the tenure of imprisonment to imprisonment
till the rising of Court, while retaining the direction for payment of
compensation as such, with a default clause of simple imprisonment
for five months.
2. The case of the complainant/first respondent was that a
cheque for an amount of Rs.1,60,000/- executed and issued by the
petitioner towards discharge of the debt which he owed the
complainant in connection with a partnership business jointly
conducted by them, was dishonoured due to insufficiency of funds in
2025:KER:93860
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the account of the petitioner, and that the petitioner did not care to
make payment of the cheque amount, despite the receipt of
statutory notice from the complainant.
3. Before the Trial Court, the complainant was examined as
PW1 and six documents were marked as Exts.P1 to P6. The
petitioner took up a contention that a security cheque which the
complainant obtained from him at the time when he subleased a
building to the petitioner, had been manipulated and misused for the
institution of a false complaint against him. In support of the above
defence case, two witnesses and the petitioner tendered evidence
before the Trial Court as DW1 to DW3, and five documents were
marked as Exts.D1 to D5. The learned Magistrate, after an
evaluation of the aforesaid evidence, and hearing both sides, held
that the complainant successfully established the execution and
issuance of Ext.P1 cheque by the petitioner towards the discharge of
a legally enforceable debt of Rs.1,60,000/-. It was further observed
by the learned Magistrate that the defence case could not be
established even on the yardstick of preponderance of probabilities.
The Appellate Court, after re-appraisal of the whole evidence,
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concurred with the above finding of the learned Magistrate.
However, a slight modification was made to the sentence awarded
by the Trial Court by limiting the detention of the petitioner to a
single day till the rising of Court. Now, the petitioner is before this
Court with this revision challenging the aforesaid concurrent findings
of the courts below.
4. Since there was no representation for the petitioner even
after repeated adjournments, Adv. Ms.Amrin Fathima was appointed
as Amicus Curiae to represent the petitioner.
5. Heard the learned Amicus Curiae representing the
revision petitioner, the learned counsel for the first respondent, and
the learned Public Prosecutor representing the State of Kerala.
6. As already stated above, the defence taken by the
petitioner before the courts below was that the complainant had
misused a cheque which he obtained from the petitioner at the time
of subleasing a building to him. According to the petitioner, the
aforesaid cheque was obtained as a signed blank cheque towards
advance payment of the sublease, and that it was not returned by
the complainant even though the petitioner had discharged the
2025:KER:93860
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financial liability he incurred with the complainant. According to the
petitioner, as per the case he highlighted before the Trial Court, the
complainant requested to include him also as a partner in the
automobile business being conducted by the petitioner in the
building subleased to him, but he refused to accept the above
request. Thus, it is alleged that the complainant resorted to the
institution of a false complaint due to the aforesaid grudge he
nurtured against the petitioner.
7. The case projected by the petitioner in the above regard
has been rightly held as totally unbelievable by the Trial Court as
well as the Appellate Court. The failure of the petitioner to take
recourse to appropriate legal steps against the complainant for the
misuse of his cheque, has been stated as one of the reasons by the
Trial Court as well as the Appellate Court to disbelieve the defence
version. It was further observed by the courts below that the
complainant could successfully bring home the statutory
presumptions available to him under Sections 138 and 118 of the N.I
Act, and that the accused failed to rebut the aforesaid presumption.
There is absolutely no illegality or impropriety in the aforesaid
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concurrent findings of the courts below. Furthermore, it is pertinent
to note that, in the absence of convincing evidence to the contrary,
the petitioner is disqualified and disentitled to put forward a
challenge against the validity of Ext.P1 cheque after admitting his
signature in that document, in view of the law laid down by the
Hon'ble Apex Court in Bir Singh v. Mukesh Kumar [(2019) 4
SCC 197].
8. In this revision, for the first time, the learned Amicus
Curiae advanced an argument that Ext.P1 cheque cannot be
considered as one issued in discharge of a legally enforceable debt,
since as per the admitted case of the complainant, the amount
mentioned in that cheque was the investment made by the
complainant for the joint business held in partnership with the
petitioner. According to the learned Amicus Curiae, the amount of
Rs.1,60,000/- which the complainant is said to have invested in the
partnership business with the petitioner, cannot be termed as a
legally enforceable debt which the petitioner owed to the
complainant. It is not possible to accept the above argument of the
learned Amicus Curiae since it is evident from the averments in the
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complaint as well as the sworn statement of the complainant as PW1
that the aforesaid amount of Rs.1,60,000/- was the amount which
the petitioner was found to be liable to pay the complainant after the
settlement of accounts in the partnership pursuant to the decision of
the partners to wind up the said business. There is absolutely no
reason to discard the above case of the complainant which was
concurrently found to be consistent and true by the courts below.
Therefore, the impugned verdicts of the courts below are not liable
to be interfered with in this revision on any of the grounds raised
from the part of the petitioner.
In the result, the revision petition is hereby dismissed. The
valuable assistance rendered by the learned Amicus Curiae Adv. Ms.
Amrin Fathima in presenting the case of the revision petitioner, is
appreciated. The Registry shall transmit the case records along with
a copy of this order to the Trial Court for immediate enforcement of
the sentence awarded by the Appellate Court.
(sd/-)
G. GIRISH, JUDGE
jsr
