Kerala High Court
V.Manoharan vs State Of Kerala on 26 March, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.No. 392 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947
CRL.REV.PET NO. 392 OF 2021
AGAINST THE JUDGMENT DATED 31.03.2021 IN Crl.A NO.210 OF
2019 OF ADDITIONAL DISTRICT AND SESSIONS COURT-I, MANJERI
ARISING OUT OF THE JUDGMENT DATED 08.11.2019 IN ST NO.2143 OF
2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MALAPPURAM
PETITIONER/APPELLANT/ACCUSED:
V.MANOHARAN
AGED 55 YEARS, S/O DAMODHARAN,
30/1840, MANORAM, VADAKKUVEETTIL,
PARAMBA, MEDICAL
COLLEGE POST, KOZHIKODE.
BY ADVS.
S.RAJEEV
K.K.DHEERENDRAKRISHNAN
V.VINAY
M.S.ANEER
RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
2 MATHAI P.D,
AGED 63 YEARS, S/O DEVASSIA,
ADHIRA, IRUMBANCHOLA, A R NAGAR,
TIRUR ANGHADI,
MALAPPURAM DISTRICT-682 511.
Crl.Rev.Pet.No. 392 of 2021
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BY ADVS.
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Rev.Pet.No. 392 of 2021
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ORDER
This revision petition has been filed challenging the
concurrent finding of conviction and sentence in a
proceedings under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I.Act').
2. The revision petitioner is the accused and the
respondent No.2 is the complainant in S.T.No.2143 of 2016
on the file of the Judicial First Class Magistrate Court,
Malappuram (for short, 'the trial court'), which is a private
complaint filed under Section 142 of the N.I.Act. The case of
the respondent No.2 is that the petitioner borrowed a sum of
Rs.2,00,000/- from him on two occasions and towards the
discharge of the said debt, Ext.P1 cheque was issued, which
on presentation was dishonoured for want of sufficient funds.
Even though statutory notice under Section 138(b) of the N.I.
Act was issued and received by the petitioner, there was no
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compliance. Hence, the prosecution was launched.
3. Before the trial court, the respondent No.2 gave
evidence as PW1 and Exts.P1 to P7 were marked. No
defence evidence was adduced. After 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 till the rising of the Court
and to pay Rs.2,00,000/- as compensation to the respondent
No.2, in default, to suffer simple imprisonment for one
month. The petitioner challenged the conviction and sentence
of the trial court before the Additional District and Sessions
Court-I, Manjeri (for short, 'the appellate court') as
Crl.Appeal No. 210 of 2019. The appellate court dismissed
the appeal confirming the conviction and sentence of the trial
court. This revision petition has been filed challenging the
judgments of the trial court as well as the appellate court.
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4. I have heard Sri.S.Rajeev, the learned counsel for
the petitioner and Sri.Thareeq Anver, the learned counsel for
respondent No.2.
5. The learned counsel for the petitioner submitted
that the petitioner has specifically disputed his signature in
Ext.P1 cheque, the respondent No.2 failed to prove the
execution as well as the signature in the cheque and hence
the trial court as well as the appellate court ought not to have
drawn a presumption in favour of the respondent No.2 under
Sections 118 and 139 of the N.I.Act. On the other hand, the
learned counsel for respondent No.2 submitted that even
though the signature is disputed, the evidence on record
would clearly establish that the respondent No.2 has proved
the transaction, execution and signature in the cheque and
the petitioner failed to adduce any rebuttal evidence to rebut
the presumption available to the respondent No.2 under
Sections 118 and 139 of the N.I.Act.
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6. The petitioner gave Ext.P7 reply notice to Ext.P4
notice issued by the respondent No.2 to him under Section
138(b) of the N.I.Act. It is a detailed reply. In that reply, the
petitioner has specifically stated that he has absolutely no
acquaintance with the respondent No.2. The transaction
alleged in the notice has been specifically denied. He has also
specifically stated that he did not issue any cheque. That
apart, in specific words, the petitioner has stated that he did
not put the signature or make any writings on the cheque
and the respondent No.2 has fraudulently and illegally
fabricated his signature and writings in the cheque. In spite
of the said specific averments in the reply notice, there is no
mention about the said averments in the complaint. In other
words, the said specific averments in the reply notice have
not been controverted in the complaint. In the chief affidavit
also, the respondent No.2 did not controvert the said denial
of signature stated in the reply notice. On the other hand, in
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the chief examination it is simply stated that the signature
found in Ext.P1 cheque is that of the petitioner and in Ext.P6
acknowledgment card, the petitioner put signature in
different form.
7. The learned counsel for respondent No.2 submitted
that cheque was dishonoured for the reason, "insufficient
funds" and not for the reason signature differs. Relying on
the decision of the Supreme Court in Ajitsinh Chehuji
Rathod vs. State of Gujarat and Ors. [AIR 2024 SC 787],
it is argued that the petitioner ought to have summoned his
specimen signature from the Bank to prove that the signature
in Ext.P1 cheque is not that of his. That was a case where an
application filed by the accused to send the cheque in
question to a handwriting expert was dismissed. Considering
the facts of that particular case, the Supreme Court found
that since the accused failed to take steps to summon the
bank records to disprove his signature and also to put any
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question regarding the signature to the bank officials when
examined, the dismissal of application for sending the cheque
to the handwriting expert was correct. The said dictum may
not apply to the facts of this case. As stated already, it is a
case where from the very inception, the petitioner has taken
a definite stand that the signature in Ext.P1 cheque is not
that of his. Still, the respondent No.2 did not take any steps
to prove that the signature in the cheque is that of the
petitioner. The respondent No.2 could have either filed an
application to send Ext.P1 cheque for scientific examination
or summoned the account opening form and other relevant
documents from the bank to compare the signature of the
petitioner in those documents with that of the signature
found in Ext.P1 cheque. Without proving the signature of the
petitioner in the cheque, prima facie, the presumption under
Sections 118 and 139 of the N.I.Act cannot be drawn.
8. I examined the signature found in Ext.P1 cheque
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and also the signature found in Ext.P6 acknowledgment card.
Both of them are totally different. I have also verified the
signature of the petitioner in the vakalath filed before this
court and also the signature put by him in the statement
given by him under Section 313(1)(b) of Cr.P.C. The signature
in the vakalat and the statement under Section 313(1)(b) of
Cr.P.C. are almost similar in nature. But those signatures are
totally different from the signature in the cheque. Thus, there
is no convincing evidence before the court to prove that the
signature in Ext.P1 cheque is that of the petitioner. It
assumes significance since the petitioner specifically denied
his signature in Ext.P1 cheque even in the reply notice. In
these circumstances, I am of the view that the conviction and
sentence passed by the trial court as well as the appellate
court cannot be sustained.
9. The learned counsel for the respondent No.2
submitted that an opportunity should be given to the
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respondent No.2 to prove that the signature in Ext.P1 cheque
is that of the petitioner. Considering the entire facts and
circumstances of the case, I am of the view that the parties
should be given further opportunity to prove their respective
contentions regarding the signature found in Ext.P1 cheque
and its execution.
10. For the reasons stated above, the judgments
passed by the trial court as well as the appellate court are
hereby set aside. S.T.No.2143 of 2016 is remitted to the trial
court for fresh disposal.
11. The parties shall appear before the trial court on
10.04.2025.
12. The trial court shall grant an opportunity to the
respondent No.2 to take necessary steps to send the cheque
for scientific examination and/or to summon the documents
from the bank to prove the signature in Ext.P1 cheque.
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13. The petitioner shall also be given an opportunity to
adduce defence evidence, if any.
14. The trial court shall dispose of the case in
accordance with law thereafter.
The criminal revision petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
