Kerala High Court
Martin Mani vs K.V.John on 20 June, 2025
CRL.R.P.No.986 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 20TH DAY OF JUNE 2025 / 30TH JYAISHTA, 1947
CRL.REV.PET NO. 986 OF 2017
AGAINST THE JUDGMENT DATED 30.06.2017 IN Crl.A NO.124
OF 2016 OF IV ADDITIONAL SESSIONS COURT-IV, THODUPUZHA
ARISING OUT OF THE JUDGMENT DATED 06.08.2016 IN ST NO.146
OF 2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT
-II,THODUPUZHA
REVISION PETITIONER/APPELLANT / ACCUSED:
MARTIN MANI
KALLARANGATTU HOUSE, ARAKULAM POST, ELAPPALLY
VILLAGE.
BY ADVS.
SRI.MATHEW JOHN (K)
SHRI.DOMSON J.VATTAKUZHY
RESPONDENTS/RESPONDENTS/COMPLAINANT AND NOT PARTY:
1 K.V.JOHN
S/O.VARKEY, KALLIKUZHIYIL HOUSE, PUTHUPERIYARAM
POST, MANAKKAD VILLAGE, THODUPUZHA TALUK.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682031.
CRL.R.P.No.986 of 2017
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BY ADVS.
SHRI.BAIJU JOHN
SRI.JOHN VARGHESE(THOPPIL)
OTHER PRESENT:
SMT. MAYA.M . N (PP)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CRL.R.P.No.986 of 2017
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P.V.BALAKRISHNAN, J.
---------------------
CRL.R.P.No.986 of 2017
---------------------------
Dated this the 20th day of June, 2025
ORDER
The revision petitioner is the accused in
S.T.No.146/2014 on the files of the Judicial First Class
Magistrate Court-II, Thodupuzha. He stood trial for
committing an offence punishable under Section 138 of NI
Act before that court and was convicted and sentenced
thereunder. The appeal preferred by the accused as Criminal
Appeal No.124/2016 before the Additional Sessions Court-IV,
Thodupuzha, was allowed in part by modifying the sentence.
2. The case of the complainant in brief is as follows:-
The complainant is a contractor holding PWD licence. The
accused is also doing some contract works. Both of them
had done various contract works together and they thus
became thick friends. The accused borrowed an amount of
Rs.4 lakhs from the complainant on 27.02.2013 and on the
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very same day, issued Ext.P1 post-dated cheque dated
12.06.2013 for Rs.4 lakhs in favour of the complainant.
When the cheque was presented for collection, it got
dishonoured for the reason that there were no sufficient
funds in the account. The statutory notice issued to the
accused also did not evoke any response except a reply
notice raising false contentions. Hence, the complainant
approached the trial court by filing S.T.No.146/2014.
3. In the trial court, from the side of the
complainant, PWs 1 and 2 were examined and Exts.P1 to P8
documents were marked. When examined under Section
313 of Cr.PC, the accused denied all the incriminating
circumstances appearing against him in evidence and
contended that he is innocent. He stated that when one
Mr.Raju, who is the supplier of materials for construction
works, demanded security, the complainant and the accused
went to SBT, Moolamattom Branch and opened an account
on 19.07.2011 by depositing Rs.5,000/-. Thereafter, the
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accused obtained a cheque from the bank and after signing
it entrusted it to the said Raju as security on 19.07.2011. He
also stated that the entire amount due to the said Raju was
cleared and the cheque was collected by the complainant,
who inturn misused it and filed the present case. From the
side of the accused, DW1 to DW3 were examined and
Exts.D1 to D3 documents were marked. The trial court, on
an appreciation of the evidence on record, found the
accused guilty and convicted him under Section 138 of NI
Act. The accused was sentenced to undergo simple
imprisonment for a period of one year under Section 138 of
NI Act. He was also ordered to pay a compensation of
Rs.4,00,000/- to the complainant under Section 357 (3)
Cr.PC, with a default clause. The appeal filed by the accused
as Crl.Appeal No.124/2016 was allowed in part and while
the conviction of the accused was upheld, the sentence was
modified and reduced to one of simple imprisonment for a
period of three months under Section 138 of NI Act. The
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appellate court also ordered the accused to pay a
compensation of Rs.4,00,000/- to the complainant under
Section 357 (3) Cr.PC and imposed a default clause.
4. Heard Sri.Mathew John, the learned counsel for
the revision petitioner and Sri.John Varghese Thoppil, the
learned counsel for the 1st respondent.
5. The learned counsel for the revision petitioner
submitted that both the trial court and the appellate court
did not properly appreciate the evidence on record and has
arrived at a wrong conclusion of guilt against the accused.
He submitted that the cheque, which has been given to one
Mr.Raju as security for delivering construction materials, has
been obtained by the complainant and misused in this case.
He also submitted that, from the evidence of DW1, the
Manager and Ext.D1, it can be seen that it is the
complainant himself, who has introduced the accused for
opening the account and obtain the cheque leaves on
19.07.2011. He further submitted that it is at the instance of
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the complainant himself, the cheque was handed over to
said Raju and after clearing the dues to Raju, the
complainant obtained the cheque from him and misused it in
this case. He argued that the accused has also sent a reply
stating these facts and has examined DW3, the said Raju to
prove the afore fact. Hence, according to the learned
counsel, the execution of the cheque as such is not proved
by the complainant and therefore, the conviction and the
sentence cannot be sustained.
6. Per contra, the learned counsel for the 1 st
respondent supported the impugned judgments and
contended that there are no grounds to interfere with the
same. He submitted that the evidence of PW1 would clearly
show that the accused has executed and issued Ext.P1
cheque to the complainant for discharging the liability. He
argued that Ext.P6 reply notice sent by the accused is very
vague, sans details and it does not even mention the period
during which the cheque was handed over, to whom it was
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handed over etc. He contended that the evidence of DW1
would clearly show that the version of the complainant
handing over the cheque to Raju on 19.07.2011 is false
since Ext.P1 cheque leaf has been obtained by the
complainant from the bank only on 22.07.2011. He also
contended that the evidence of DW3 is not helpful to the
accused since it shows that the cheque has been collected
by the complainant and the accused together and he could
not identify the said cheque as Ext.P1. Hence, he prayed
that this revision petition may be dismissed.
7. On going through the rival contentions and
materials on record, it is to be seen that both the trial court
and the appellate court has relied upon the evidence of PW1
and PW2 and Exts.P1 to P8 to find that the complainant has
proved that Ext.P1 cheque has been issued by the accused
to discharge the liability as alleged. An appraisal of the
evidence of PW1 would go to show that he has deposed in
tune with the averments in the complaint. His evidence is to
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the effect that he had advanced a sum of Rs.4 lakhs to the
accused on 27.02.2013 and at that time, the accused had
issued Ext.P1 post-dated cheque with date 12.06.2013 for
Rs.4 lakhs. It also shows that when the cheque was
presented for collection, it got dishonoured and even after
receipt of the statutory notice, the accused did not repay the
amount. It is to be taken note that complainant has also
produced Ext.P8 statement of accounts which would show
that an amount of Rs.4 lakhs came to his account on
27.02.2013 and that the same was withdrawn. The said
factor was considered by both the courts for finding that the
complainant had the source to advance the money.
8. In the light of the evidence of PW1 coupled with
Ext.P1, it can be safely found that the complainant has
discharged the initial burden cast upon him to prove the
execution of the cheque and in establishing the basis for
drawing the presumptions under Sections 118 and 139 of NI
Act. Now it is for the accused to rebut the said presumptions
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at least by preponderance of probabilities. He can rebut the
presumptions either by adducing evidence or by cross
examining PW1 thereby bringing in probabilities in his favour
and improbabilites against the complainant.
9. In the present case, the specific case of the
accused is that Ext.P1 signed blank cheque has been handed
over to one Mr.Raju as security on 19.07.2011 and that the
said cheque has been obtained by the complainant somehow
and has been misused. But, the evidence of DW1 coupled
with Ext.D3 would go to show that Ext.P1 cheque leaf was
given to the accused from the Bank only on 22.07.2011. If
so, as rightly found by the trial court, the version of the
accused that he has handed over the cheque as security to
Mr.Raju on 19.07.2011 is not true and it can be safely
inferred that the attempt of the accused is to somehow
make out a defence. At this juncture, I will also take note of
the fact that Ext.P6 reply notice issued by the accused does
not even mention as to whom the cheque was given and the
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period during which it was thus handed over etc. If the
version as taken by the accused is true, in probabilities,
these details would have found a place in Ext.P6.
10. Be that as it may, the evidence of DW3, Raju @
Radhakrishnan, would go to show that the cheque, which
has been handed over to him by the accused, has been
returned to the complainant and the accused together, after
the entire dues has been cleared by them. As rightly found
by the trial court and the appellate court, if the cheque has
thus been returned to both of them, naturally, in all
probability, the accused would have collected the cheque
from the complainant. It is again to be taken note that the
evidence of DW3 would go to show that he is not sure as to
whether it is Ext.P1 cheque which was given as security and
which he had returned to the complainant and the accused.
In such circumstances, I find that the evidence of DW3 will
not help the accused in any manner to rebut the
presumptions.
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11. The result of foregoing discussions is that there is
no error in the appreciation of evidence by the trial court
and the appellate court and both the courts have arrived at
a correct conclusion of guilt against the accused.
12. Now, coming to the question of sentence,
considering the nature of the transaction, the amount
involved and the facts and circumstances of the case, I am
of the view that the substantive sentence imposed by the
appellate court is on a higher side and the same can be
modified and reduced to one of simple imprisonment till the
rising of the court. But I am also of the view that no
interference is required with the order directing payment of
compensation and the default sentence imposed by the
appellate court, since they are only just and reasonable.
In the result, this revision petition is allowed in part as
follows:-
I) The conviction of the revision petitioner /
accused under Section 138 of NI Act by the
Judicial First Class Magistrate Court-II,
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Thodupuzha in S.T.No.146/2014 and as confirmed
in Crl.Appeal No.124/2016 by the Additional
Sessions Court-IV, Thodupuzha is upheld.
II) The sentence imposed on the revision
petitioner / accused by the appellate court is
modified and reduced to one of simple
imprisonment till rising the court under Section
138 of NI Act.
III) The revision petitioner / accused is also
ordered to pay compensation of Rs.4,00,000/-
(Rupees Four Lakhs only) to the complainant
under Section 357 (3) Cr.PC and in default, to
undergo simple imprisonment for a period of three
months.
IV) The revision petitioner / accused is granted
four months time to pay the compensation thus
ordered.
Sd/-
P.V.BALAKRISHNAN
JUDGE
bng
