Kerala High Court
A.V. Sujith vs V.N. Rana Singh on 20 February, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
2025:KER:14773
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
CRL.REV.PET NO. 435 OF 2024
AGAINST THE JUDGMENT DATED 31.01.2024 IN CRL.A NO.41 OF
2023 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II ARISING OUT
OF THE JUDGMENT DATED 28.01.2023 IN ST NO.1457 OF 2018 OF
SPECIAL COURT OF JUDICIAL FIRST CLASS MAGISTRATE FOR THE
TRIAL OF CASES UNDER SECTION 138 OF NI ACT, 1881, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED:
A.V. SUJITH
AGED 50 YEARS
S/O. KRISHNAN VYDHYAR, PROPRIETOR,
M/S. KRISHNA AYURVEDA PHARMACY,
DOOR NO. K/P/9/689A.,
M/S. KRISHNA AYURVEDA PHARMACY,
KOLACHERI P.O., KANNUR DISTRICT,
PIN - 670601
BY ADVS.
M.B.SHYNI
RAJESH KUMAR R.
V.R.ANILKUMAR
SARAFUDHEEN T.
ELDHOSE JOY
AJITH P.C.
JOHN K GEORGE
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
2
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 V.N. RANA SINGH
S/O. NARAYANAN, KALIYATH,
DREAMS VILLA HOUSE, AVITANALLUR P.O.,
NADUVANNUR VIA, KOZHIKODE, PIN - 673612
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
SMT. SREEJA V., SENIOR PUBLIC PROSECUTOR
C.K.MOHANAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
3
ORDER
This Criminal Revision Petition has been filed
challenging the concurrent finding of conviction and
sentence in a prosecution initiated under Section 138 of the
Negotiable Instruments Act (for short 'the N.I. Act').
2. The 1st respondent filed a private complaint
against the petitioner under Section 142 of the N. I. Act
before the Special Judicial First Class Magistrate Court (N. I.
Act Cases), Kozhikode (for short 'the trial court') as S. T.
No.1457/2018. The case of the 1st respondent is that the
petitioner who is conducting an Ayurveda Pharmacy
business under the name and style of M/s. Krishna Ayurveda
Pharmacy at Kolachery, Kannur borrowed a sum of
₹6,00,000/- (Rupees Six lakhs only) from him for his
business purposes and towards the discharge of the said
amount, Ext.P1 cheque was issued which on presentation
was returned for the reason account closed. Even though
statutory notice under Section 138(b) of the N. I. Act was
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
issued, there was no compliance. Hence, the prosecution
was lodged.
3. Before the trial court, on the side of the
complainant, PWs 1 to 3 were examined and Exts.P1 to
P6 series were marked. On the side of the defence, DW1
was examined. After the trial, the trial court found the
petitioner guilty under Section 138 of the N. I. Act and
he was convicted for the said offence. He was sentenced
to undergo simple imprisonment for three months and to
pay a fine of ₹8,43,000/- (Rupees Eight lakhs and forty
three thousand only), in default of payment of fine to
suffer simple imprisonment for one month. The
petitioner challenged the conviction and sentence of the
trial court before the IInd Additional Sessions Court,
Kozhikode (for short 'the appellate court') as Criminal
Appeal No.41/2023. The appellate court dismissed the
appeal. This Criminal Revision Petition has been filed
challenging the judgments of the trial court as well as
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
the appellate court.
4. I have heard the learned counsel for the
petitioner and the learned counsel for the 1 st
respondent.
5. To prove the case of the complainant, the
complainant himself gave evidence as PW1 and two
other witnesses were examined as PWs 2 and 3. PW1
gave evidence in tune with the averments in the
complaint. He spoke about the transaction, execution
and issuance of the cheque. The definite case of the 1 st
respondent is that for the business of the petitioner by
name M/s. Krishna Ayurveda Pharmacy, the petitioner
borrowed a sum of ₹6,00,000/- from him, on condition that
the petitioner shall pay share of the profits to him and
describing the terms and conditions of the transaction,
Ext.P5 agreement was executed between him and the
petitioner. Ext.P5 agreement has been properly proved. The
attesting witness to Ext.P5 was examined as PW2. Even
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
though PWs 1 and 2 were cross examined in length, nothing
tangible could be extracted to discredit his testimony .
The petitioner has admitted his signature in the cheque.
His defence is that he borrowed a sum of ₹11,00,000/-
(Rupees Eleven lakhs only) from the 1 st respondent for
discharging his liability to Kerala Financial Corporation,
at the time of the said borrowal, he handed over five
blank signed cheques of State Bank of Travancore and
blank stamp papers to the 1 st respondent, even though
he repaid ₹11,40,000/- (Rupees Eleven lakhs and forty
thousand only) with interest through one Mr. Mujeeb of
Calicut, the blank signed cheques or blank stamp papers
were not returned and misusing one of the blank signed
cheques, the false complaint was lodged. But no
evidence has been adduced to substantiate the said
defence version. The petitioner did not care to examine
the so called Mr. Mujeeb of Calicut. The 1st respondent
has succeeded in proving the transaction, execution and
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
issuance of the cheque. No rebuttal evidence has been
adduced by the petitioner to rebut the presumption
available to the 1st respondent under Sections 118 and
139 of the N. I. Act.
6. The learned counsel for the petitioner
submitted that the cheque in question was issued by the
petitioner in his capacity as a proprietor of M/s. Krishna
Ayurveda Pharmacy, Kolachery and the 1st respondent
has miserably failed to prove that he is the proprietor of
the said proprietary concern and hence he cannot
maintain the complaint under Section 138 of the N. I.
Act. Reliance was placed on Milind Shripad
Chandurkar v. Kalim M. Khan and Another [2011
(1) KHC 751]. The dictum laid down in the said decision
is that to maintain a complaint, the complainant has to
establish by cogent evidence that the cheques had been
issued to him or in his favour or that he is the sole
proprietor of the concern. That is a case where the
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
complaint was instituted by the complainant in his
capacity as the sole proprietor of the concern. Here, the
accused is the sole proprietor of the concern. Hence, the
said dictum cannot be applied to the facts of the case.
That apart, the petitioner did not dispute that he is the
proprietor of M/s. Krishna Ayurveda Pharmacy,
Kolachery. The cheque was signed by him as the
proprietor of M/s. Krishna Ayurveda Pharmacy,
Kolachery. In the cause title of this revision petition
also, the petitioner himself has been described as the
proprietor of M/s. Krishna Ayurveda Pharmacy. In short,
the petitioner has no case that he is not the proprietor of
M/s. Krishna Ayurveda Pharmacy, Kolachery. Therefore,
there is no merit in the said contention. I find no reason
to interfere with the concurrent finding of conviction.
7. The petitioner was sentenced to undergo
simple imprisonment for three months and to pay a fine
of ₹8,43,000/- (Rupees Eight lakhs and forty three
2025:KER:14773
CRL.REV.PET NO.435 OF 2024
thousand only), in default of payment of fine to suffer
simple imprisonment for one month. Considering the
entire facts and circumstances of the case, I am of the
view that the substantive sentence has to be reduced till
the rising of the court. Hence, the substantive sentence
is reduced till the rising of the court retaining the fine
amount. The petitioner is granted three months' time to
appear before the trial court to receive the
imprisonment till the rising of the court and to deposit
the fine amount.
The Criminal Revision Petition is disposed of as
above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
