[Cites 6, Cited by 0]
Kerala High Court
Abdul Salam.K vs State Of Kerala on 5 December, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.252/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 5TH DAY OF DECEMBER 2025 / 14TH AGRAHAYANA, 1947
CRL.REV.PET NO. 252 OF 2025
AGAINST THE JUDGMENT DATED 28.10.2024 IN Crl.A NO.86
OF 2020 OF ADDITIONAL SESSIONS COURT, TIRUR ARISING OUT OF
THE JUDGMENT DATED 22.06.2020 IN ST NO.5 OF 2017 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-II, TIRUR
REVISION PETITIONER/APPELLANT/ACCUSED:
ABDUL SALAM.K, AGED 53 YEARS
S/O.KUNHIPOCKER HAJI, KOZHITHODI HOUSE, VARAPPARA,
PARAMBIL PEEDIKA.P.O,, MALAPUURAM, PIN - 676317
BY ADVS.SHRI.KIRAN JOHNY
SMT.PADMA LAKSHMI
ESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 PUTHANMALIYEKKAL ANAS.P.HASSAN, AGED 34 YEARS
S/O.HASSAN.K.P, KUTTIPURAM AMSOM DESOM,
KUTTIPURAM.P.O, TIRUR TALUK, MALAPPURAM - 679571
BY ADVS. SHRI.SABIR N.S.
SRI.JOHN JOSEPH(ROY), SHRI.MUHAMMED USMAN P.S.
SHRI.ANISH VARGHESE, SHRI.JOHNSON THOMAS
SHRI.AIBIN GEORGE
SRI.E.C.BINEESH-SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 05.12.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.252/2025
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ORDER
This revision petition has been filed challenging the
concurrent finding of conviction and sentence in a prosecution
under Section 138 of the Negotiable Instruments Act, 1881 (for
short, the NI Act.
2. The respondent No.2 filed a private complaint
against the petitioner under Section 142 of the NI Act alleging
offence punishable under Section 138 of the NI Act before the
Judicial First Class Magistrate Court-II, Tirur (for short, the trial
court) as S.T.No.5/2017. The case of the respondent No.2 is that
the petitioner borrowed a sum of ₹10,00,000/- from him and
towards the discharge of the said debt, Ext.P2 cheque was issued
which on presentation was dishonoured for want of sufficient
funds. Even though statutory notice under Section 138(b) of the
NI Act was issued, it was returned unserved as it was evaded by
the petitioner. Since there was no compliance, the prosecution
was launched.
3. Before the trial court, on the side of the
complainant/respondent No.2, PW1 was examined and Exts.P1 to
P5 were marked. DW1 was examined on the side of the defence
and Exts.D1 to D4 were marked. After trial, the trial court found
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the petitioner guilty under Section 138 of the NI Act. He was
sentenced to undergo imprisonment till the rising of the court and
to pay the compensation of ₹10,00,000/- (Rupees ten lakhs only),
in default to suffer simple imprisonment for a period of four
months. The petitioner challenged the conviction and sentence of
the trial court before the Additional Sessions Court, Tirur (for
short, the appellate court) in Crl.A.No.86/2020. The appellate
court dismissed the appeal. This revision petition has been filed
challenging the judgments of the trial court as well as the
appellate court.
4. This Court in Crl.M.A.No.2/2025 has suspended
the execution of the sentence on condition that the petitioner
shall execute a bond for ₹1,00,000/-(Rupees one lakh only) with
two solvent sureties for the like sum each to the satisfaction of
the trial court and on further condition that the petitioner shall
deposit 40% of the compensation amount before the trial court
within one month. Since it was represented by the learned
counsel for the petitioner that the petitioner was in jail, he was
directed to be released on bail on execution of the bond and to
deposit 40% of the compensation amount within one month of his
release. The petitioner did not comply with the said direction. He
has approached the Supreme Court challenging the order of this
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Court in Crl.M.A.No.2/2025 dated 6.3.2025. The Honourable
Supreme Court as per order dated 8.9.2025 granted three weeks'
time to deposit the 40% of the compensation amount. It was
stated that the sentence would stand suspended if the deposit is
made within three weeks. However, the said direction has not
been complied with. When the case came up for consideration on
27.11.2025, there was no representation for the petitioner. On
previous postings also, there was no representation. Since the
40% of the compensation amount directed to be deposited was
not deposited, the counsel for the respondent No.2 insisted for
hearing the revision petition itself. Thereafter, the learned
counsel for the petitioner appeared and submitted that he has no
instructions. Hence, Adv. M. Shajna was appointed as Amicus
Curiae.
5. I have heard the learned Amicus Curiae and the
learned counsel for the respondent No.2. I have also perused the
records. I place on record my appreciation for the able assistance
rendered by the learned Amicus Curiae.
6. To prove the case of the complainant/respondent
No.2, he himself was examined as PW1. He deposed in tune with
the averments in the complaint. According to him, the petitioner
borrowed a sum of ₹10,00,000/- from him agreeing to repay the
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same within one year. He also deposed that an agreement was
executed in that regard which was marked as Ext.P1. He further
deposed that towards the discharge of the said liability, the
petitioner issued Ext.P2 cheque. Even though PW1 was cross
examined in length, nothing tangible could be extracted from his
evidence to discredit his version. The evidence of PW1 gets
corroboration from Ext.P1 agreement. The petitioner admitted
the signature in the cheque. He also admitted that he made all
the entries in Ext.P2 cheque. The defence set up by the petitioner
is that he borrowed a sum of ₹3,00,000/- from one Muthukoya
Thangal and towards security of the said transaction, a blank
cheque was issued and the respondent No.2 misused the same
and a false complaint was filed. However, there is nothing on
record to substantiate the defence version. The so-called
Muthukoya Thangal was not examined at all. The
complainant/respondent No.2 has succeeded in proving the
transaction, execution and issuance of the cheque. No rebuttal
evidence has been adduced by the accused/petitioner to rebut the
presumption available to the complainant under Sections 118 and
139 of the NI Act. I see no illegality or impropriety in the
impugned judgments. Accordingly, the revision petition is
dismissed.
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As stated already, the petitioner after obtaining an order
suspending the execution of sentence misleading this Court that
he was in jail, did not appear before the court in person or
through counsel thereafter. He also did not deposit the 40% of
the compensation amount as directed. Hence the trial court is
directed to execute the conviction warrant against the petitioner
at the earliest. The District Police Chief, Malappuram shall give all
the assistance to see that the conviction warrant is executed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
