Kerala High Court
Abi Abraham vs Kanhangad Rubber Ltd on 24 March, 2025
Author: K. Babu
Bench: K. Babu
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
CRL.REV.PET NO. 680 OF 2024
(AGAINST THE JUDGMENT DATED 10.10.2023 IN Crl.A NO.177
OF 2019 OF SESSIONS COURT, KASARAGOD ARISING OUT OF THE
JUDGMENT DATED 24.08.2019 IN CC NO.20 OF 2018 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -III, HOSDURG)
REVISION PETITIONER/APPELLANT/ACCUSED:
ABI ABRAHAM,
AGED 42 YEARS
PROPRIETOR, A&J RUBBERS,
FORT LIGHT COMPLEX, KANNUR,
KERALA, PIN - 670001.
BY ADVS.
UMMUL FIDA
C.IJLAL
P.PARVATHY
R.UDAYA KUMAR
ANANDU R.
SHERIL ABRAHAM
B.G.HARINDRANATH (SR.)(K/378/1984)
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 KANHANGAD RUBBER LTD., BESTO CENTRE,
KANHANGAD, KANNUR DISTRICT, KERALA - ,
REPRESENTED BY ITS MANAGING DIRECTOR.,
PIN - 670012.
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 2
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
R1 BY ADVS.
SURESH KUMAR KODOTH
SUKARNAN(K/001572/2021)
R2 BY PP SRI.G.SUDHEER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 24.03.2025, ALONG WITH Crl.R.P.Nos.691 & 693 of
2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
CRL.REV.PET NO. 691 OF 2024
(AGAINST THE JUDGMENT DATED 10.10.2023 IN Crl.A NO.179
OF 2019 OF SESSIONS COURT, KASARAGOD ARISING OUT OF THE
JUDGMENT DATED 24.08.2019 IN CC NO.72 OF 2018 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -III, HOSDURG)
REVISION PETITIONER/APPELLANT/ACCUSED:
ABI ABRAHAM
AGED 42 YEARS
PROPRIETOR, A&J RUBBERS,
FORT LIGHT COMPLEX, KANNUR,
KERALA, PIN - 670001.
BY ADVS.
UMMUL FIDA
C.IJLAL
P.PARVATHY
R.UDAYA KUMAR
ANANDU R.
SHERIL ABRAHAM
B.G.HARINDRANATH (SR.)(K/378/1984)
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 KANHANGAD RUBBER LTD.
BESTO CENTRE, KANHANGAD, KANNUR DISTRICT,
KERALA - , REPRESENTED BY ITS MANAGING DIRECTOR,
PIN - 670012.
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 4
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
R1 BY ADVS.
SURESH KUMAR KODOTH
SUKARNAN(K/001572/2021)
R2 BY PP SRI.G.SUDHEER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 24.03.2025, ALONG WITH Crl.R.P.Nos.680 & 693 of
2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
CRL.REV.PET NO. 693 OF 2024
(AGAINST THE JUDGMENT DATED 10.10.2023 IN Crl.A NO.178
OF 2019 OF SESSIONS COURT, KASARAGOD ARISING OUT OF THE
JUDGMENT DATED 24.08.2019 IN CC NO.42 OF 2018 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -III, HOSDURG)
REVISION PETITIONER/APPELLANT/ACCUSED:
ABI ABRAHAM, AGED 42 YEARS
PROPRIETOR, A&J RUBBERS, FORT LIGHT COMPLEX,
KANNUR, KERALA, PIN - 670001.
BY ADVS.
UMMUL FIDA
C.IJLAL
P.PARVATHY
R.UDAYA KUMAR
ANANDU R.
SHERIL ABRAHAM
B.G.HARINDRANATH (SR.)(K/378/1984)
RESPONDENT/RESPONDENT/COMPLAINANT & STATE:
1 KANHANGAD RUBBER LTD.,
BESTO CENTRE, KANHANGAD, KANNUR DISTRICT,
KERALA - REPRESENTED BY ITS MANAGING DIRECTOR.,
PIN - 67001.
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 6
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
R1 BY ADVS.SURESH KUMAR KODOTH
SUKARNAN(K/001572/2021)
R2 BY PP SRI.G.SUDHEER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 24.03.2025, ALONG WITH Crl.R.P.Nos.680 & 691 of
2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:26370
Crl.R.P.Nos.680, 691 & 693 of 2024 7
"C.R."
ORDER
As the subject matter and the parties in these Criminal
Revision Petitions are the same, they are being disposed of by this
common order.
2. The common revision petitioner in these revision
petitions is the accused in C.C.Nos.20, 42 & 72 of 2018 on the file of
the Judicial First Class Magistrate Court-III, Hosdurg. The common
respondent No.1 - Kanhangad Rubber Ltd., a public limited company, is
the complainant.
3. The complainant - Kanhangad Rubber Ltd. filed three
complaints against the accused alleging offence punishable under
Section 138 of the Negotiable Instruments Act before the Judicial First
Class Magistrate Court-III, Hosdurg.
4. The common pleadings in the complaints are as follows:-
The complainant is a public limited company established under
the Companies Act, 1956. The company is represented by its Managing
Director. The Articles of Association of the complainant company
authorize and empower the Managing Director to represent the
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company in all legal matters. The Board of Directors of the company
held on 12.08.2016 empowered the Managing Director of the company
to initiate legal proceedings against the accused.
5. The accused is the proprietor of M/s.A & J Rubbers,
Kannur. The complainant and the accused entered into an unregistered
agreement on 1.8.2014, whereby the accused agreed to purchase
ammoniated-filled latex from the complainant from 1.8.2014 to
31.12.2015. A sum of Rs.1.37 crores is due from the accused to the
complainant. In discharge of his legally enforceable debt, the accused
executed 17 post-dated cheque leaves. The present complaints relate
to three out of the above-said cheques.
6. The cheque involved in this case is cheque bearing
No.224445 dated 8.11.2016 for a sum of Rs.10,00,000/- drawn on the
ICICI Bank, Kannur Branch. The complainant presented the cheque for
encashment through the Federal Bank, Kanhangad Branch. The
cheque was dishonoured on 11.11.2016 for the reason "exceeds
arrangements" as there were no sufficient funds in the account of the
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accused. On 6.12.2016, the complainant caused to issue a registered
lawyer's notice to the accused, calling upon him to return the amount
covered by the cheque. The accused received the notice. He did not
respond to the same.
7. PWs 1 to 3 were examined, and Exts.P1 to P13 were
marked on the side of the complainant. After the closure of the
complainant's evidence, the statement of the accused under Section
313 Cr.P.C. was recorded. He pleaded that the cheque he gave as
security was misused by the complainant. However, no defence
evidence was adduced.
8. The complainant presented the cheque bearing
No.224438 dated 1.1.2016 issued by the accused for Rs.10,00,000/-
drawn on the ICICI Bank, Kannur Branch for encashment through the
Federal Bank, Kanhangad Branch. It was dishonoured on 5.1.2016 for
the reason "funds insufficient". On 25.01.2016, the complainant
caused to issue a registered lawyer's notice to the accused, calling
upon him to pay the amount covered by the cheque. Though the
accused received the notice, he did not respond to the same.
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9. PWs 1 to 3 were examined, and Exts.P1 to P14 were
marked on the side of the complainant. After the closure of the
complainant's evidence, the statement of the accused under Section
313 Cr.P.C. was recorded. He pleaded that the cheque he gave as
security was misused by the complainant. However, no defence
evidence was adduced.
10. The cheque involved in this case is cheque bearing
No.224444 dated 08.06.2016 for a sum of Rs.10,00,000/- drawn on
the ICICI Bank, Kannur Branch. The complainant presented the
cheque for encashment through the Federal Bank, Kanhangad Branch.
The cheque was dishonoured on 10.06.2016 for the reason "funds
insufficient" as there were no sufficient funds in the account of the
accused. On 30.06.2016, the complainant caused to issue a registered
lawyer's notice to the accused, calling upon him to return the amount
covered by the cheque. The accused received the notice. He did not
respond to the same.
11. PWs 1 to 3 were examined, and Exts.P1 to P15 were
marked on the side of the complainant. After the closure of the
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complainant's evidence, the statement of the accused under Section
313 Cr.P.C. was recorded. He pleaded that the complainant misused
the cheque he gave as security. However, no defence evidence was
adduced.
12. The trial court found the accused guilty of the offence
punishable under Section 138 of the Negotiable Instruments Act. The
accused admitted the execution of the agreement dated 1.8.2014 with
the complainant. The cheques were issued as security. The
complainant misused the cheques for unlawful gain.
13. The trial court convicted the accused under Section 138
of the Negotiable Instruments Act in all the three cases and sentenced
to undergo simple imprisonment for a period of six months each and to
pay a compensation of Rs.10,00,000/- each under Section 357(3) of
the Cr.P.C. The accused challenged the judgments of conviction and
sentence by the trial court before the Sessions Court, Kasaragod, which
confirmed the conviction and sentence in the three cases.
Evidence
14. The Managing Director of the complainant company
gave evidence as PW1. He filed an affidavit in lieu of chief
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examination. In the chief affidavit, he stated that the Articles of
Association of the Company authorize and empower the Managing
Director to represent the company in all legal matters and to engage
lawyers and attorneys to file suits and initiate legal proceedings on
behalf of the company. He deposed that the Board of Directors of the
company held on 10.12.2018 has also empowered him to initiate legal
proceedings against the accused. PW1 gave evidence that on
1.8.2014, the accused and the complainant entered into an agreement
whereby the accused/purchaser agreed to purchase ammoniated filled
latex from the company for a period from 1.8.2014 to 31.7.2015 .
PW1 further stated that on 10.9.2015, the accused, in discharge of a
liability of Rs.1.37 crores, executed and issued 13 cheque leaves.
15. The complainant presented the cheques for
encashment. He stated that cheque Nos.224438, 224444 and 224445
were dishonoured on 05.01.2016, 10.06.2016 and 11.11.2016,
respectively. PW1 further stated that lawyer's notices were caused to
issue to the accused. The accused received the notices but neither
replied nor discharged the liability covered by the cheques.
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16. PW2 was the Managing Director of the company for the
period from 2010 to 2015. The agreement dated 1.8.2014, whereby
the accused agreed to purchase ammoniated filled latex, was executed
during the tenure of PW2. The agreement was proved through PW2.
He gave evidence that towards the purchase of latex, a sum of
Rs.1,00,00,000/- and a sum between Rs.30 Lakhs and Rs.40 Lakhs
were due to the company from the accused. PW2 stated that he had
repeatedly contacted the accused and requested him to clear the
liability. According to PW2, thereafter, the accused came to the office
of the company and executed the cheques in question. The accused
executed the cheques in the presence of PW2.
17. PW3 was a Development Officer of the Rubber Board.
He worked as the Manager of the complainant company during the
period 2009-2012 and 2015-2016 and as the Managing Director of the
company from 2016 to 2018. PW3 personally knew the accused. A
sum of Rs.1.37 Crores was due to the company from the accused
towards the purchase of latex. He stated that the accused executed
13 cheques towards the liability. The oral evidence of PWs1 to 3 is
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corroborated by the cheques marked as Ext.P4 in the Calendar Cases,
the agreement dated 1.8.2014 and the statutory notices issued by the
complainant. The accused has not disputed the signatures and the
writings in the cheques. He has not disputed the execution of the
agreement dated 1.8.2014. His only contention is that there is no
legally enforceable debt, as pleaded by the complainant. The
complainant has produced the ledger extracts maintained by the
company to establish the liability. The accused has issued a
confirmation letter in favour of the company admitting the liability.
The accused has not disputed any of the documents produced by the
complainant.
18. The trial Court and the Sessions Court concurrently
found that the complainant established the execution of the cheques.
19. I have gone through the pleadings in the complaints,
the oral evidence adduced by PWs 1 to 3 and the documents, including
the cheques in dispute, the agreement dated 1.8.2014, copy of the
ledger extracts, the confirmation letters and the lawyer's notices. I find
no irregularity in the finding of the trial court and the Sessions Court
that the complainant established the execution of the cheques. Once
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the complainant has established the execution of the cheque, a
presumption is drawn in favour of the complainant that the cheque was
issued by the accused in the discharge of a debt by virtue of the
presumptive device under Section 139 of the Act. Now, the burden
shifts on the accused to rebut the mandatory presumption by showing
that the cheque was not issued towards the discharge of any liability.
Until this evidential burden is discharged by the accused, the presumed
facts in favour of the complainant will have to be taken to be true
without expecting the complainant to do anything further. (Vide:
Rajesh Jain v. Ajay Singh [2023 (6) KHC 391 (SC)].
20. The challenge of the accused is on two counts. The first
challenge is that the complainant has not proved that the person
representing the complainant company is a person duly authorized to
represent it. Relying on TRL Krosaki Refractories Ltd. v. SMS Asia
Private Limited and Ors. (MANU/SC/0228/2022) the accused
submitted that if the payee is a company, necessarily the complaint
should be filed in the name of the company, and the company is to be
represented by an authorized person empowered to represent it by
way of a resolution or a power of attorney.
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21. In the present case, the complainant is the company
itself. The company is represented by its Managing Director. The
complainant specifically pleaded that the Articles of Association of the
complainant company authorize and empower the Managing Director to
represent all legal matters and to initiate legal proceedings on behalf of
the company. The company further pleaded that the Board of
Directors of the company held on 12.8.2016 empowered the Managing
Director of the company to initiate legal proceedings against the
accused. PW1 gave evidence in support of these pleadings in the
complaints. The payee is the company itself. In TRL Krosaki
Refractories Ltd. (supra), the Supreme Court held that when a
company is the payee of the cheque based on which a complaint is filed
under Section 138 of the N.I. Act, the complainant necessarily should
be the company, which would be represented by an employee who is
authorized. In the present case, the complainant is the company itself.
The company has been represented by the Managing Director, who is
the authorized person. Therefore, the mandate of Section 142 of the
N.I. Act has been satisfactorily complied with. Therefore, this
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challenge falls to the ground.
22. The second challenge of the accused is that the
witnesses who gave oral evidence had no direct knowledge regarding
the transactions. I am unable to accept this contention. PWs 2 and 3,
the employees of the company during the relevant period, specifically
stated about the liability of the accused towards the company. They
also gave evidence in support of the case of the complainant that the
accused executed the cheques in dispute.
23. PW2 specifically stated that the accused executed the
cheques in his presence. PW3 also supported the case of the
complainant. The contention of the learned counsel for the accused
relying on Gujarat Guardian Limited (M/s.) v. George Kurian
(2015 (2) KHC 516) is not applicable to the present facts. The
learned counsel for the accused highlighted another discrepancy in the
pleadings and the evidence regarding the number of cheques executed.
In the complaint, the complainant pleaded that the accused executed
17 cheques. While giving evidence, PWs 2 and 3 stated that the
accused executed only 13 cheques. This discrepancy will not affect the
merit of the case of the complainant as the complainant has
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successfully proved the liability and execution of the cheques.
24. The only question to be considered is whether the
accused discharged his evidential burden to rebut the mandatory
presumption. True that the standard of proof to discharge this
evidential burden must meet only the standard of preponderance of
probabilities, similar to a defendant in a civil proceeding. To rebut the
presumption, the accused has to raise a probable defence. The
accused is left with two options. The first option proving that the debt
or liability does not exist, for which he has to lead evidence or bring
out circumstances that the cheque was not issued in discharge of a
debt or liability. The second option is to prove the non-existence of the
debt or liability by preponderance of probabilities by referring to the
particular circumstance of the case. To discharge this evidential
burden, the accused can rely on the evidence of the complainant and
all other circumstances brought out in evidence. The evidence need
not even be direct. It may comprise circumstantial evidence or
presumption of law or fact. In the present case, the accused has not
placed any material to the satisfaction of the court that on a
preponderance of probabilities, there existed no debt or liability in
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the manner pleaded in the complaint, demand notice, affidavit,
evidence, etc.
25. I have carefully gone through the pleadings and
evidence. Nothing has been elicited in the cross-examination of PWs 1
to 3 to raise any suspicion in the case set up by the complainant other
than a minor inconsistency regarding the number of cheques issued.
The case of the complainant company has been consistent throughout
as is evident from the pleadings in the complaint, demand notice,
affidavit and the evidence adduced.
26. The accused miserably failed to discharge his evidential
burden. Therefore, the fact that the cheques issued in discharge of a
debt or liability will have to be taken to be proved with the aid of the
presumption under Section 139 of the N.I. Act without requiring
anything more from the complainant.
27. The challenge herein is on the concurrent findings
recorded by the trial court and the Sessions Court. Unless the order
passed by the Magistrate is perverse or the view taken by the court is
wholly unreasonable, or there is non-consideration of any relevant
material, or there is palpable misreading of records, the Revisional
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Court is not justified in setting aside the order, merely because another
view is possible. The Revisional Court is not meant to act as an
appellate court. The whole purpose of the revisional jurisdiction is to
preserve the power of the court to do justice in accordance with the
principles of criminal jurisprudence. The revisional power of the court
under Sections 397 to 401 Cr.P.C is not to be equated with that of an
appeal. Unless the finding of the court, whose decision is sought to be
revised, is shown to be perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or where the decision is based on
no material or where the material facts are wholly ignored or where the
judicial discretion is exercised arbitrarily or capriciously, the courts may
not interfere with the decision in exercise of their revisional jurisdiction.
{Vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke
[(2015) 3 SCC 123], Munna Devi v. State of Rajasthan & Anr
[(2001) 9 SCC 631)] and Asian Resurfacing of Road Agency Pvt.
Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)]}.
28. This Court is of the view that the judgments impugned
are not affected by any patent error of jurisdiction. All the challenges
in these revision petitions, therefore, fail. This Court fails to find that
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the impugned orders are untenable in law or grossly erroneous or
unreasonable.
The Criminal Revision Petitions stand dismissed.
Sd/-
K.BABU
Judge
TKS
