Kerala High Court
Jacob George vs Santhosh on 21 July, 2025
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:54025
CRL.REV.PET NO. 124 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.REV.PET NO. 124 OF 2023
AGAINST THE JUDGMENT DATED 17.10.2022 IN Crl.A NO.306 OF
2020 OF THE COURT OF ADDITIONAL DISTRICT & SESSIONS JUDGE,
MUVATTUPUZHA ARISING OUT OF THE JUDGMENT DATED 18.11.2020
IN CC NO.450 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT - III (TEMPORARY), MUVATTUPUZHA
REVISION PETITIONER/APPELLANT/ACCUSED:
JACOB GEORGE
AGED 62 YEAR, S/O.GEORGE, PUNNACHALIL HOUSE,
THIRUVAMKULAM KARA, THIRUVANKULAM P.O,
THIRUVAMKULAM VILLAGE, KANAYANNOORTALUK,
ERNAKULAM DISTRICT, PIN - 682035
BY ADVS.
SRI.AJITH VISWANATHAN
SHRI.SHIBU JOSEPH
SHRI. SAYED MANSOOR BAFAKHY THANGAL
SHRI.M.SRIRAM
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 SANTHOSH
S/O.RAJU, MANGALATH HOUSE, SOUTH MAZHAVANNOOR
VILLAGE, PIN - 683541
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CRL.REV.PET NO. 124 OF 2023
2
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
SRI.P.M.SANEER
SRI.SHAJIN S.HAMEED
SMT.NITHYA R.
SMT.S.SEETHA, SR PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 21.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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CRL.REV.PET NO. 124 OF 2023
3
P.V. KUNHIKRISHNAN, J.
--------------------------------
Crl.R.P. No.124 of 2023
----------------------------------------------
Dated this the 21st day of July, 2025
ORDER
This criminal revision petition is filed against the
judgment dated 17.10.2022 in Criminal Appeal No.306/020 of
the Court of Additional District & Sessions Judge,
Muvattupuzha arising out of the judgment dated 18.11.2020 in
CC No.450/2019 of the Judicial First Class Magistrate Court
(Temporary), Muvattupuzha. As per the impugned judgment,
the revision petitioner was found guilty under Section 138 of
the Negotiable Instruments Act, 1881 (for short 'NI Act'). The
1st respondent is the complainant. Hereinafter the revision
petitioner and the 1st respondent are mentioned as accused and
complainant
2. The complainant's case in brief are as follows:
Complainant is doing fabrication works of ships in Cochin
Shipyard in the name and style as Excellent Ship Builders along
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CRL.REV.PET NO. 124 OF 2023
with his friend one Rijo. On 21.01.2013 Complainant and his
friend Rijo entered an agreement with the accused to purchase
his property for Rs.58 lakhs and paid a total amount of Rs
Rs.52,02,864/- towards the sale consideration. On the failure to
effect the said sale, the parties entered an settlement
agreement on 03.03.2017, whereby the accused agreed to pay
Rs. 45 lakhs to the complainant. As per the said settlement
agreement, the accused on 25.09.2017 issued a cheque for Rs.
45 lakhs bearing No. 197162 of Indian Bank, Thiruvankulam
dated 25.09.2017 in favour of the complainant. On presentation
for encashment the said cheque was dishonoured due to Funds
insufficient and the accused failed to pay the cheque amount
even after the receipt of demand notice mandated u/s138(b)of
NI Act. Hence this complaint.
3. To substantiate the case, the complainant examined
PWs 1 to 3. Exts.P1 to P6 are marked from the side of the
complainant. On the side of the defence, DW1 was examined
and Exts.D1 to D3 are the documents adduced by the defence.
After going through the evidence and documents, the trial court
found that the accused committed the offence under Section
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CRL.REV.PET NO. 124 OF 2023
138 of the NI Act and he was sentenced to undergo simple
imprisonment for six months and to pay compensation of
Rs.45,00,000/- (Rupees Forty Five Lakhs only) to the
complainant under Section 357(3) Cr.P.C. In default of payment
of the compensation amount, the accused was directed to
undergo simple imprisonment for six months. Aggrieved by the
conviction and sentence, an appeal is filed before the Sessions
Court. The Additional District & Sessions Court, Muvattupuzha
considered the appeal and modified the substantive sentence of
six months to till rising of the court. The default sentence
already granted by the trial court is confirmed by the appellate
court. Aggrieved by the same, this revision petition is filed.
4. Heard the learned counsel appearing for the revision
petitioner, learned counsel for the 1 st respondent and the
learned Public Prosecutor.
5. The counsel for the accused raised a short point.
The counsel submitted that admitted case of the accused is that
the amount due is to the complainant and another. If that is the
case, without any authorization from the other person, the
complainant cannot prosecute the case. The accused relied on
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CRL.REV.PET NO. 124 OF 2023
the judgment of this Court in Sunil K.J. v. State of Kerala and
Another [2020 (4) KHC 347]. The counsel for the complainant
submitted that there is authorization from the other person and
the same was produced before the trial court, but that is not
marked.
6. This Court considered the contentions of the
complainant and the accused. This Court perused the judgment
of this Court in Sunil K.J's case (Supra). The relevant portion
of the judgment is extracted hereunder:
"A reading of Section 138 of the Negotiable
Instruments Act, it is clear that, when a person
draws a cheque on an account maintained by him
with a banker for payment of any amount of money
to another person from out of that account for the
discharge in whole or in part of any debt or other
liability is returned by the bank for the reasons
mentioned in the provision, and the other statutory
conditions have complied, the offence under Section
138 of the Negotiable Instruments Act is attracted.
In Section 138 of the Negotiable Instruments Act, it
is stated that 'any amount of money to another
person'. The question is whether there can be
issuance of cheque to a person for the payment of
money to several persons. A reading of Section 138
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CRL.REV.PET NO. 124 OF 2023
of the Negotiable Instruments Act, it is clear that, a
cheque can be issued for the payment of any amount
of money to another person for the discharge, in
whole or in part, of any debt or other liability.
Another person can be only an individual. Of course,
he can represent several others if there is an
authorization to him by the other persons to accept
the cheque on behalf of others. It can be by way of
power of attorney by the other persons to the payee
or the holder in due course of the cheque. It can also
be by way of different modes of authorization. If the
cheque is dishonoured, the prosecution can be
initiated by the 'payee' or 'the holder in due course'
of the cheque alone. But the 'payee' or the 'holder in
due course' can prosecute a complaint in such a
situation only if there is an authorization to him by
the other persons. The other persons can also
adduce evidence before the court that, the payee or
the holder in due course received the cheque on
their behalf. But without a power of attorney or
authorization or any other evidence authorising the
payee or the holder in due course, he cannot accept
the cheque on behalf of others and prosecute a
complaint. Similarly, to succeed in prosecution, the
other persons should adduce admissible oral or
documentary evidence showing authorization. "
7. In the light of the above principle, I think there is
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CRL.REV.PET NO. 124 OF 2023
force in the argument of the accused. But the counsel for the
complainant submitted that he already produced the
authorization from the other person and the same is not
marked. Considering the facts and circumstances of the case
and also considering the amount involved in the cheque, I think
one more opportunity can be given to the complainant to
produce additional documents. The counsel for the accused
submitted that the accused is now undergoing default sentence.
If that is the case, there can be a direction to release him
forthwith.
Therefore, this revision petition is allowed with following
directions:
1. The judgment dated 17.10.2022 in Criminal Appeal
No.306/020 of the Court of Additional District &
Sessions Judge, Muvattupuzha and the judgment
dated 18.11.2020 in CC No.450/2019 of Tthe
Judicial First Class Magistrate Court (Temporary),
Muvattupuzha are set aside and the case is
remanded to the trial court.
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CRL.REV.PET NO. 124 OF 2023
2. The Judicial First Class Magistrate Court-III
(Temporary), Muvattupuzha will proceed with CC
No:450/2019 in accordance with law. I make it
clear that no denovo trial is necessary. But the
complainant and the accused should be given an
opportunity to adduce further evidence, if any.
Thereafter the Magistrate can proceed in
accordance with law.
3. The revision petitioner/accused shall be released
forthwith, if his detention is not necessary in any
other case.
4. The Magistrate will try to dispose the case, as
expeditiously as possible, at any rate, within three
months from the date of receipt of a copy of this
order.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
