Kerala High Court
Ammed vs P.Mohanan on 27 October, 2025
CRL.REV.PET NO. 369 OF 2024 1 2025:KER:80303
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 27TH DAY OF OCTOBER 2025 / 5TH KARTHIKA, 1947
CRL.REV.PET NO. 369 OF 2024
AGAINST THE JUDGMENT DATED 17.10.2023 IN Crl.A.NO.69 OF
2018 OF SESSIONS COURT - IV, THALASSERY ARISING OUT OF THE
JUDGMENT DATED 26.03.2018 IN ST.NO.181 OF 2013 OF CHIEF
JUDICIAL MAGISTRATE ,THALASSERY
REVISION PETITIONER/APPELLANT/ACCUSED:
AMMED
AGED 62 YEARS
S/O.ABDU, KUNNUMKANDIYIL HOUSE, KADAVATHUR P.O.,
THALASSERY, KANNUR DISTRICT, PIN - 670676
BY ADVS.
SRI.P.YADHU KUMAR
SHI.P.BABU KUMAR
SMT.MEGHA S.
RESPONDENTS/RESPONDENT/COMPLAINANT AND STATE:
1 P.MOHANAN
AGED 60 YEARS
S/O.GOPALAN NAIR, PULLATUMMAL,P.O.,
KADAVATHUR,THALASSERY,KANNUR, PIN - 670676
2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, MARINE DRIVE,ERNAKULAM-31,
PIN - 682031
R1 BY ADVS.
SRI.PRAJIT RATNAKARAN
SRI.ABDUL RAOOF PALLIPATH
R2 BY SMT.REKHA.S.,SR.PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 27.10.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.REV.PET NO. 369 OF 2024 2 2025:KER:80303
CR
ORDER
Dated this the 27th day of October, 2025
This Criminal Revision Petition has been filed under
Sections 397 and 401 of the Code of Criminal Procedure, 1973,
challenging judgment in Crl.A.No.69/2018 on the files of the
Additional Sessions Court - IV, Thalassery, dated 17.10.2023,
arising out of judgment dated 26.03.2018 in S.T.C.No.181/2013 on
the files of the Chief Judicial Magistrate Court, Thalassery. The
revision petitioner herein is the accused and the 1 st respondent
herein is the complainant.
2. Heard the learned counsel for the revision
petitioner/accused, the learned counsel appearing for the 1 st
respondent/complainant and the learned Public Prosecutor.
3. I shall refer the parties in this Criminal Revision
Petition as to their status before the trial court as 'complainant'
and 'accused'.
4. Pursuant to dishonour of cheque, dated
02.11.2013 for Rs.8 Lakh, alleged to be borrowed by the accused
CRL.REV.PET NO. 369 OF 2024 3 2025:KER:80303
from the complainant, prosecution was initiated alleging
commission of offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (for short, 'the NI Act'
hereinafter), by the accused.
5. The learned Magistrate took cognizance of the
matter and recorded evidence by following summary trial. PW1
was examined and Exts.P1 to P8 were marked on the side of the
complainant. No defence evidence was adduced by the accused.
6. On evaluation of the evidence available, the
Magistrate Court found that the accused committed offence
punishable under Section 138 of the NI Act and accordingly, the
trial court convicted and sentenced the accused as under:
".........the accused is convicted and sentenced
to undergo simple imprisonment for 6 months and to
pay a fine of Rs.10,00,000/- for offence U/s.138 of the
Negotiable Instruments Act and in default of payment
of fine the accused shall undergo simple imprisonment
for a further period of two months. If fine is realised
that shall be released to PW1, the complainant U/s.
357 (1)(b) of Cr.PC as compensation."
7. Although Crl.A. No.69/2018 had been preferred,
the learned Additional Sessions Judge allowed the appeal in part
CRL.REV.PET NO. 369 OF 2024 4 2025:KER:80303
by modifying the sentence while sustaining the conviction.
8. While impeaching the veracity of the concurrent
verdicts of the conviction, the learned counsel for the accused
argued that in the instant case, the complainant failed to prove the
transaction as to the borrowing of Rs.8 Lakh, as alleged, with the
support of any documentary evidence apart from the cheque or by
the evidence of any other witness to the transaction. According to
the learned counsel, the case of the accused is that he borrowed
Rs.8 Lakh from one Ibrahim Haji and had entrusted four cheques,
one of which was allegedly misused for the purpose of this case. It
is further argued that an initial burden is cast upon the
complainant to prove the transaction which led to the execution of
the cheque, in order to attract the presumptions under Sections
118 and 139 of the NI Act. The decision of this Court in Padma
Conductors Pvt. Ltd. v. MIRC Electronics reported in [2024
(1) KHC 531] has been placed in this regard. According to the
learned counsel, the accused did not borrow any amount from the
complainant or the accused never issued a cheque in the name of
the complainant and therefore, the trial court as well as the
appellate court wrongly found that the accused committed offence
CRL.REV.PET NO. 369 OF 2024 5 2025:KER:80303
punishable under Section 138 of the NI Act.
9. Per contra, the learned counsel appearing for the
1st respondent/complainant argued that in this case, the evidence
available is confined to that of PW1. In categorical terms, PW1
deposed that the accused, who had borrowed Rs.8 Lakh, issued
Ext.P1 cheque upon demand for repayment of the said sum.
According to the learned counsel, the evidence of PW1 regarding
the transaction which led to the execution of Ext.P1 cheque was
not at all shaken during cross-examination, and therefore, the trial
court as well as the appellate court rightly relied on the same while
finding that the accused had committed the offence punishable
under Section 138 of the NI Act. Therefore, the conviction and
sentence would not require any interference.
10. Now, the questions arise for consideration are:
(i) Whether the trial court as well as the
appellate court wrongly entered a conviction for the
offence punishable under Section 138 of the NI Act?
(ii) Whether the conviction and
sentence would require interference?
(iii) The order to be passed?
CRL.REV.PET NO. 369 OF 2024 6 2025:KER:80303
Point Nos.(i) to (iii)
11. The specific case of the complainant is that the
complainant and the accused were residing in the same locality
and were family friends. Further, the father of the complainant
and the accused were business partners. The complainant, who
was working as a Senior Inspector of Co-operative Societies in the
Office of the Assistant Registrar, Kuthuparamba, retired from
service and received a substantial amount from his Provident
Fund. Knowing this fact, the accused approached the complainant
for a loan of Rs.8 Lakh on the pretext of closing a gold loan, with
an assurance to repay the same within one week after re-pawning
the gold ornaments. Accordingly, the accused borrowed Rs.8 Lakh
from the complainant as on 20.10.2013. The complainant, in his
chief affidavit, deposed in terms of the case set up in the
complaint. According to him, though he accepted Ext.P1 cheque
bona fide believing that the same would be honoured upon
presentation for collection, it was dishonoured for want of
sufficient funds when presented. Ext.P1 - cheque in original;
Ext.P2 - dishonour memo containing the endorsement that the
cheque was dishonoured for "funds insufficient"; Ext.P3 - copy of
CRL.REV.PET NO. 369 OF 2024 7 2025:KER:80303
the demand notice; Ext.P4 - acknowledgment card; Ext.P5 - reply
notice; Ext.P6 - copy of GPF Form T; Ext.P7 - rental agreement
between the accused and one Gopalan Nair, who is the father of
the complainant; and Ext.P8 - copy of the FIR, were tendered in
evidence through PW1. During cross-examination, the case put up
by the accused was that he had not made any entries in Ext.P1
cheque and that it was a cheque issued to one Ibrahim Haji at the
time when he had availed a loan of Rs.8 Lakh from Ibrahim Haji.
12. It is a well-settled legal principle that while
exercising revisional jurisdiction, the power of the court is not so
wide as to re-appreciate the evidence to have a contrary finding,
and the power is limited to in examining the perversity,
impropriety, or illegality of the order or orders under challenge. In
the instant case, as far as the evidence available is concerned, the
same is confined to PW1, as already observed. Relying on the
evidence of PW1, the trial court as well as the appellate court
concurrently found that the accused had borrowed a sum of Rs.8
Lakh from the complainant on 20.10.2013 and, in discharge of
that liability, had issued Ext.P1 cheque, which was dishonoured for
want of sufficient funds. Thereafter, the amount was also not
CRL.REV.PET NO. 369 OF 2024 8 2025:KER:80303
repaid on demand. The trial court and the appellate court
concurrently found that the accused committed offence punishable
under Section 138 of the NI Act. Accordingly, the accused was
convicted. It is interesting to note that an initial burden is cast
upon the complainant to discharge his initial burden in the matter
of transaction which led to execution of Ext.P1 cheque. In the
instant case, the evidence of PW1 as to the borrowing of 8 Lakh by
the accused on 20.10.2013 and the issuance of Ext.P1 cheque
towards discharge of the said liability was not at all shaken during
cross examination. Even though the accused had a case that
Ext.P1 cheque was issued to one Ibrahim Haji and that it was not
signed by him, the said contention was found to be not acceptable
to prudence, as no prudent man would accept a cheque without a
signature, as the same would not serve any purpose. Therefore, the
contention raised by the accused that he did not sign the cheque or
issue the same to PW1, is not believable. Rather, there is not even
a remote piece of evidence to substantiate the same.
13. While addressing the argument advanced by the
learned counsel for the accused that the complainant failed to
prove the transaction as to borrowing of Rs.8 Lakh without
CRL.REV.PET NO. 369 OF 2024 9 2025:KER:80303
support of any documentary evidence apart from the cheque or by
the evidence of any other witnesses to the transaction, it is to be
borne in mind that in order to prove a money transaction based on
a cheque, law does not insist for any other documents. Similarly,
the law does not insist the presence of a witness for the
transaction. A transaction in between two persons in the absence
of any other person and without support of any other person and
without support of any other documents based on a cheque alone
would be sufficient to prove the transaction when the evidence
available would establish that there was transaction and the
execution of cheque. A misconception is being carried through out
to the effect that in order to prove borrowing of money from one
person by another, there must be documentary evidence by way of
bank transactions or otherwise. If such a procedure is insisted, the
intention behind issuance of cheque to facilitate business as well
as commercial transactions easily would be in turmoiled and
transaction based on cheque would become a hazardous job. That,
in turn, would either slow or stall business and commercial deals.
14. It is a well-settled principle of law that, when one
party asserts that he has paid a certain amount to another while
CRL.REV.PET NO. 369 OF 2024 10 2025:KER:80303
suing him, the party who accepts the same is duty bound to prove
the transaction and the execution of the cheque, in consequence
thereof when the other party denies the transaction and the
liability. It is one of the fundamental principles of law that when
one party asserts an allegation and the other party denies it, then,
that is a "fact in issue" to be decided by the court based on
evidence. No doubt, evidence means proof of facts by oral
evidence, as embodied in Section 59 of the Indian Evidence Act,
1872 (for short, 'the Act, 1872', hereinafter), corresponding to
Section 54 of the Bharatiya Sakshya Adhiniyam, 2023 (for short,
'the BSA, 2023', hereinafter), and it has been provided that all
facts, except the contents of documents or electronic records, may
be proved by oral evidence, and as per Section 60 of the Act, 1872
corresponding to Section 55 of the BSA, 2023, oral evidence must
be direct. Similarly, to a certain extent, documentary evidence
also could be relied on, and the documentary evidence can be
proved by primary or by secondary evidence, as contemplated
under Section 61 of the Act, 1872 corresponding to Section 56 of
the BSA, 2023. As per Section 62 of the Act, 1872 corresponding
to Section 57 of the BSA, 2023, primary evidence means the
CRL.REV.PET NO. 369 OF 2024 11 2025:KER:80303
document itself produced for the inspection of the Court, and as
per Section 63 of the Act, 1872 corresponding to Section 58 of the
BSA, 2023, secondary evidence means and includes certified
copies given under the provisions contained therein. The mode of
proof of documents by primary evidence is provided in Section 64
of the Act, 1872 corresponding to Section 59 of the BSA, 2023, and
the mode of proof of secondary evidence is described in Section 65
of the Act, 1872 corresponding to Section 60 of the BSA, 2023.
Thus, a fact in issue can be proved either by oral evidence, by
documentary evidence, or by both oral and documentary evidence.
That apart, the circumstantial evidence forthcoming also can be
looked into. Therefore, there is no necessity in law that, in a
money transaction involving a cheque, either in civil or criminal
proceedings, when money is alleged to have been borrowed by the
accused or the defendant, as the case may be, there is any burden
cast upon the complainant or the plaintiff to prove the passing of
money by documentary evidence or by insisting on the presence of
witnesses. If a transaction between two persons without any other
document and without the presence of any other person by issuing
a cheque is the case, the evidence of the complainant or plaintiff
CRL.REV.PET NO. 369 OF 2024 12 2025:KER:80303
would be sufficient to prove the transaction, if the evidence is
wholly reliable. Only when the evidence found to be not reliable,
then, further evidence to be insisted upon either of substantial or
corroborative nature. Thus, the evidence of PW1 remained
unshaken during cross-examination, and therefore, the trial court
as well as the appellate court rightly entered a conviction, which
does not require any interference.
15. Coming to the question of sentence, it is seen that
the appellate court has modified the sentence to the least possible
extent, by directing the accused to undergo imprisonment till the
rising of the court and to pay compensation of Rs.10,00,000/- to
the complainant, and in default of payment of compensation, to
undergo simple imprisonment for a period of six months.
Therefore, the same also does not require any interference.
16. In the result, this Criminal Revision Petition fails
and is dismissed. The bail bond, if any, executed by the revision
petitioner/accused stands cancelled, and he is directed to
surrender before the trial court to undergo the modified sentence,
as per law. The amount of Rs.50,000/- deposited by the revision
petitioner/accused shall be released to the complainant by treating
CRL.REV.PET NO. 369 OF 2024 13 2025:KER:80303
the same as part of the compensation, and the accused shall pay
only the balance amount towards the compensation.
Registry is directed to forward a copy of this order to the
trial court for information and execution of sentence, without fail.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
