Kerala High Court
Satheesh Kumar vs Prashob Kumar on 9 July, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
CRL.REV.PET NO. 2415 OF 2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
CRL.REV.PET NO. 2415 OF 2011
AGAINST THE JUDGMENT DATED 06.01.2011 IN CRL.A NO.657
OF 2009 OF III ADDITIONAL SESSIONS COURT KOZHIKODE ARISING
OUT OF THE JUDGMENT DATED 24.09.2009 IN CC NO.810 OF 2007 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -IV, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED :
SATHEESH KUMAR, S/O. PRABHAKARAN NAIR,
REB. TECHNICIAN, ORTHOTIC SECTION,
DEP. OF PHYSICAL MEDICINE & REHABILITATION,
MEDICAL COLLEGE, KOZHIKODE DISTRICT.
BY ADVS.
SRI.JENNIS STEPHEN
SHRI.SANTHOSH MATHEW (SR.)
ADV.SAFNA P.S., AMICUS CURIAE
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 PRASHOB KUMAR
AGED 35 YEARS
S/O.PRASANNA, THARAMMAL HOUSE,
NEAR S.K.TEMPLE, KASABA AMSOM,
CRL.REV.PET NO. 2415 OF 2011
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DESOM OF KOZHIKODE TALUK
PIN - 673002
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
KOCHI - 682031.
BY ADVS.
SRI.ARJUN SREEDHAR
SRI.JOSEPH GEORGE(MULLAKKARIYIL)
SRI.P.S.SREEDHARAN PILLAI
OTHER PRESENT:
SRI.SANGEETHA RAJ N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 09.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
CRL.REV.PET NO. 2415 OF 2011
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ORDER
This criminal revision petition has been filed challenging
the concurrent finding of conviction and sentence in a
prosecution under Section 138 of the Negotiable Instruments Act
(for short, 'the NI Act').
2. The revision petitioner is the accused and the 1 st
respondent is the complainant. The 1st respondent filed a private
complaint against the petitioner under Section 142 of the NI Act
as C.C.810 of 2007 before the Judicial First Class Magistrate
Court-IV, Kozhikode (for short, 'the trial court'). The case of the
1st respondent is that the petitioner borrowed a sum of
Rs.1,00,000/- from him on 30.08.2007 agreeing to repay the
same within one month and towards the discharge of the said
debt, Ex.P1 cheque was issued, which, on presentation, was
dishonoured for want of sufficient funds. Ext.P4 lawyer notice
issued under Section 138(b) of NI Act was returned as unclaimed
CRL.REV.PET NO. 2415 OF 2011
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by the petitioner. Hence the prosecution was launched.
3. Before the trial court, the 1st respondent himself gave
evidence as PW1 and Exts.P1 to P6 were marked. On the side of
the defence, one witness was examined as DW1 and Exts.D1 to
D4 were marked. After trial, the trial court found the accused
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 three months and to pay a
compensation of Rs.1,00,000/- to the 1st respondent under
Section 357(3) of Cr.P.C, in default to suffer simple
imprisonment for a period of one month. The petitioner
challenged the conviction and sentence of the trial court before
the IIIrd Additional Sessions Court, Kozhikode (for short, 'the
appellate court') in Crl.Appeal No.657 of 2009. The appellate
court dismissed the appeal and confirmed the conviction and
sentence. This revision petition has been filed challenging the
judgments of the trial court as well as the appellate court.
CRL.REV.PET NO. 2415 OF 2011
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4. The learned counsel appearing for the petitioner
reported no instructions. Therefore, notice was issued to the
revision petitioner. The said notice was returned unserved
stating that 'no such person in that address'. Hence, this Court
appointed Adv.Safna P.S. as Amicus Curiae to assist the Court.
5. I have heard Adv.Safna P.S., the learned Amicus
Curiae, Sri.Arjun Sreedhar, the learned counsel for the 1 st
respondent and Sri.Sangeetha Raj N.R, the learned Public
Prosecutor. I place on record the appreciation for the able
assistance rendered by the Amicus Curiae.
6. To prove the case of the 1st respondent, he himself
gave evidence as PW1. He deposed that the petitioner borrowed
a sum of Rs.1,00,000/- and towards the discharge of the said
debt Ex.P1 cheque was issued. Even though PW1 was cross
examined at length, nothing tangible could be extracted from his
testimony to discredit the prosecution version. The petitioner
admitted the signature in the said cheque. His case is that the
CRL.REV.PET NO. 2415 OF 2011
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cheque in question was issued in blank as a security to the father
of the 1st respondent at the time of surrendering the tenancy
right of the shop room taken on lease by him and the said cheque
was misused when the money advanced to one Chithra through
the petitioner was not repaid promptly. In order to substantiate
the said defence plea, a witness was examined as DW1 and
Exts.D1 to D4 were marked. According to the petitioner, Ext.P1
cheque was given as security to the complainant's father before
2002 at the time of surrendering the shop room taken on rent by
him. Exts.D1 to D4 are the documents produced from ICICI
Bank, Kozhikode branch. It was marked through DW1, who is the
Bank Manager. Ext.D1 is the true copy of cheque leaf status
report which would show the details of issuance of cheque book
to the petitioner. DW1 deposed that the cheque book containing
Ext.P1 cheque was issued to the petitioner on 11.02.2003.
Exts.D2 to D4 are the account summary for different periods
starting from 11.02.2003 to 31.12.2003. DW1 also deposed that
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the cheques bearing serial numbers subsequent to Ext.P1 cheque
reached the bank in 2003. As stated already, the definite case of
the petitioner was that the cheque was handed over to the father
of the 1st respondent before 2002. But the evidence adduced by
the defence would show that even the account was opened by the
petitioner only on 11.02.2003. Therefore, the contention of
handing over signed blank cheque prior to 2002 cannot be
believed at all. The trial court as well as the appellate court,
based on this evidence, concluded that the petitioner has failed to
probabilise the defence case set up by him. I see no reason to
take a difference view. The 1 st respondent has succeeded in
proving the transaction, execution and issuance of the cheque.
The petitioner failed to adduce any rebuttal evidence to rebut the
presumption available to the 1 st respondent under Sections 118
and 139 of the NI Act. Hence, I find no reason to interfere with
the concurrent finding of conviction.
7. What remains is the sentence. The petitioner was
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sentenced to undergo simple imprisonment for a period of three
months and to pay a compensation of Rs.1,00,000/- with a
default sentence. Considering the entire facts and circumstances
of the case and also the nature of the transaction, I am of the
view that the substantive sentence of imprisonment can be
reduced to imprisonment till the rising of the court. Hence, the
substantive sentence is reduced to imprisonment till the rising of
the court and the petitioner is directed to pay a compensation of
Rs.1,25,000/- to the 1st respondent under Section 357(3) of
Cr.P.C, in default to suffer simple imprisonment for a period of
three months.
The Crl.R.P is allowed in part.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
