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Kerala High Court
Subair A.V vs M/S.Koyenco Mobikes on 2 February, 2026
2026:KER:8181
Crl.R.P No.1541/2009 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 2ND DAY OF FEBRUARY 2026 / 13TH MAGHA, 1947
CRL.REV.PET NO. 1541 OF 2009
AGAINST THE ORDER OF CONVICTION AND SENTENCE PASSED BY
THE COURT OF SECOND ADDITIONAL SESSIONS JUDGE, KOZHIKODE IN
Crl.A NO.202 OF 2007 DATED 18.12.2008 WHICH AROSE FROM THE
ORDER OF CONVICTION AND SENTENCE PASSED BY THE JUDICIAL
MAGISTRATE OF FIRST CLASS -IV,KOZHIKODE IN CC NO.249 OF 2004
DATED 20.02.2007
REVISION PETITIONER/APPELLANT/3RD ACCUSED:
SUBAIR A.V., S/O.VEERANKUTTY HAJI, ALIKA VEEDU,
IDIYANGARA, CALICUT.
BY ADV SRI.R.BINDU (SASTHAMANGALAM)
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 M/S.KOYENCO MOBIKES
REPRESENTED BY ITS PARTNER AND POWER OF ATTORNEY HOLDER
P.P.JASIQUE, S/O.P.P.KOYA, PANNAMPURATH HOUSE,
KOZHIKODE.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY ADV SRI.DEVAPRASANTH.P.J.
SRI RENJIT GEORGE, SR. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 30.01.2026, THE COURT ON 02.02.2026 DELIVERED THE
FOLLOWING:
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Crl.R.P No.1541/2009 2
ORDER
The third accused in C.C No.249/2004, who suffered concurrent
conviction along with the other two accused, for the commission of
offence under Section 138 of the Negotiable Instruments Act, from the
Judicial First Class Magistrate Court-IV and the Second Additional
Sessions Court, Kozhikode, has filed this revision challenging the verdicts
of the aforesaid Courts.
2. The complaint was filed by the first respondent firm against
the first accused firm represented by the second accused as its
Managing Partner and the petitioner herein as Partner. The allegation
against the accused was that an amount of Rs.30,99,247.25 stood due
from the accused in connection with the business transaction with the
complainant, and that after discussions and talks, the liability of the
accused was fixed as Rs.23,99,247.25 after adjusting an amount of
Rs.7,00,000/- paid by another firm. Towards the payment of the above
amount of Rs.23,99,247.25, the accused are said to have issued three
cheques. Since the above three cheques were dishonoured for the
reason that it exceeded arrangements, the complainant issued statutory
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Crl.R.P No.1541/2009 3
notice to all the three accused. The petitioner herein received lawyer
notice but the other two accused got it returned as unclaimed. Since the
accused did not care to make payment of the cheque amount as
demanded in the notice, the complainant instituted criminal prosecution
against them.
3. Before the Trial Court, the Power of Attorney Holder of the
complainant was examined as PW1 and 17 documents were marked as
Exts.P1 to P17. From the part of the accused, one witness was
examined as DW1 and Ext.D1 series were marked. Three third party
documents were marked as Exts.X1 to X3. After evaluating the aforesaid
evidence and hearing both sides, the learned Magistrate found the
accused guilty of commission of offence under Section 138 of the
Negotiable Instruments Act and convicted them thereunder. The first
accused firm was sentenced to pay a fine of Rs.1,00,000/-. The second
accused and the petitioner herein were sentenced to undergo simple
imprisonment for one year and fine Rs.10,00,000/- each. The fine
amount, if realised, was ordered to be paid to the complainant as
compensation under Section 357(1) Cr.P.C. Though the petitioner and
the other accused took up the matter in separate appeals, the appeal
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Crl.R.P No.1541/2009 4
filed by accused Nos.1 and 2 were dismissed consequent to the dismissal
of the delay condonation petition filed by them. The accused Nos.1 and
2 challenged the dismissal of the delay condonation petition and appeal
by filing Crl.R.P No.3249/2009 before this Court. As per the order dated
17.12.2014, the above revision petition was allowed in part reducing the
sentence of imprisonment awarded to the second accused to
imprisonment till rising of the Court, while retaining the direction to pay
fine Rs.10,00,000/-, with a default clause of simple imprisonment for six
months, as such. Accused Nos.1 and 2 were also granted three months'
time to make payment of the fine amount, which was ordered to be
given as compensation to the complainant under Section 357(1)(b)
Cr.P.C.
4. The appeal filed by the petitioner herein as Crl.A
No.202/2007 was allowed in part modifying the sentence awarded by the
Trial Court to fine Rs.10,00,000/- with a default clause of simple
imprisonment for six months. However, the Appellate Court confirmed
the conviction of the petitioner for the commission of offence under
Section 138 of the N.I Act. The present revision is directed against the
aforesaid judgment of the Appellate Court.
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Crl.R.P No.1541/2009 5
4. Heard the learned counsel for the revision petitioner, the
learned counsel for the first respondent, and the learned Public
Prosecutor representing the State of Kerala.
5. As already stated above, the petitioner herein has been
arraigned as the third accused in the complaint, in his capacity as the
partner of the first accused firm which is said to have incurred a liability
of Rs.23,99,247.25 with the complainant firm. It has been specifically
averred in the complaint that the petitioner herein was actively involved
in the conduct of business of the first accused firm, which resulted in the
aforesaid liability. The agreement executed by the complainant and the
accused, fixing the outstanding liability of the accused with the
complainant at Rs.23,99,274.25, is marked as Ext.P6. In the aforesaid
agreement, in which the petitioner herein is also a signatory, the
execution and issuance of Exts.P7 to P9 cheques which are the subject
matter of this criminal prosecution, has been clearly stated. In the
aforesaid agreement, the petitioner herein and the first accused, who
figured as second party, had categorically undertaken to make sufficient
arrangements for the collection of the aforesaid cheques when presented
by the complainant. It is further covenanted in the aforesaid agreement
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Crl.R.P No.1541/2009 6
that, in case of dishonour of the aforesaid cheques, the petitioner and
the second accused would be liable for criminal prosecution for cheating
as well. Thus, it is apparent from the aforesaid document, as well as the
evidence tendered by the representative of the complainant as PW1, that
Exts.P7 to P9 cheques were executed and issued towards the discharge
of the liability of the amount mentioned in the aforesaid cheques in the
business transaction of the first accused firm in which the petitioner
herein was also in-charge of the conduct of affairs.
6. The learned counsel for the petitioner would argue that the
petitioner could not be held liable for the dishonour of Exts.P7 to P9
cheques since he was only a silent partner who had no role in the
conduct of business of the aforesaid firm. The argument advanced by
the learned counsel for the petitioner in the above regard, cannot be
accepted since it is apparent from Ext.P6 and the evidence adduced by
PW1 that the petitioner was having an active role in the transactions
which eventually resulted in the execution and issuance of those
cheques.
7. Another argument advanced by the learned counsel for the
petitioner is that the amounts which Exts.P7 to P9 cheques bear, cannot
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Crl.R.P No.1541/2009 7
be termed as the liability incurred by the accused with the complainant
firm since PW1, during cross-examination, denied the specific Clause in
Ext.P6 about the adjustment of Rs.7,00,000/- received from another
firm, with the pre-existing liability which was stated as Rs.30,99,247.25.
Thus, according to the learned counsel for the petitioner, Exts.P7 to P9
cheques cannot be said to be valid instruments for initiating criminal
prosecution for its dishonour. On this score also, the argument advanced
by the learned counsel for the petitioner cannot be accepted. It is true
that, on two occasions during cross-examination, PW1 had denied the
suggestive questions put by the counsel for the accused about the
adjustment of Rs.7,00,000/- out of the outstanding liability of
Rs.30,99,247.25 incurred by the accused. But, the testimony of PW1 in
the above regard is of no consequence since the liability as disclosed by
Exts.P7 to P9 cheques are in fact less than the quantum of liability which
PW1 had stated in answer to the questions put during
cross-examination. Exts.P7 to P9 cheques could be termed as invalid if
only PW1 had stated that the amount covered by the aforesaid cheques
exceeded the actual subsisting liability of the accused. If the amount
mentioned in the dishonoured cheque is found to be less than the actual
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Crl.R.P No.1541/2009 8
liability, as borne out from the evidence of the complainant, it could, at
the most, be presumed that the complainant had written-off or
abandoned the amount in deficit. Therefore, the stray remarks of PW1
during cross-examination denying the adjustment of liability of the
accused to the tune of Rs.7,00,000/-, are of no consequence as far as
the criminal prosecution launched in this case, since the accused have no
case that the amount of Rs.23,99,247.25 covered by Ext.P7 to P9
cheques was inclusive of the above amount of Rs.7 lakh which the
complainant agreed to deduct from their liability.
8. On going through the impugned judgment of the Appellate
Court, it is seen that the learned Additional Sessions Judge has rightly
made a re-evaluation of the evidence on record, and arrived at the right
finding that the petitioner is guilty of commission of the offence under
Section 138 of the N.I Act. The finding in the above regard cannot be
displaced in exercise of the revisional powers of this Court.
9. In Sanjabij Tari v. Kishore S Borcar [2025(6) KHC 250
SC] the Hon'ble Supreme Court, while dealing with the limitations in the
exercise of revisional jurisdiction of the High Court, held as follows:
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Crl.R.P No.1541/2009 9
"27. It is well settled that in exercise of revisional jurisdiction, the
High Court does not, in the absence of perversity, upset concurrent
factual findings [See: Bir Singh (supra)]. This Court is of the view that
it is not for the Revisional Court to re-analyse and re-interpret the
evidence on record. As held by this Court in Southem Sales & Services
and Others v. Sauermilch Design and Handels GmbH, it is a
well-established principle of law that the Revisional Court will not
interfere, even if a wrong order is passed by a Court having jurisdiction,
in the absence of a jurisdictional error.
28. Consequently, this Court is of the view that in the absence of
perversity, it was not open to the High Court in the present case, in
revisional jurisdiction, to upset the concurrent findings of the Trial Court
and the Sessions Court."
Thus the law is well settled that High Courts should be loath in
interfering with the concurrent findings of the Trial Court and
Appellate Court, in the absence of perversity looming large from the
evidence on record.
10. In the light of the discussions aforesaid, I am of the view
that there is absolutely no ground to set aside, alter or modify the
findings of conviction and sentence in the impugned judgment of the
Appellate Court.
Resultantly, the revision stands dismissed.
(Sd/-)
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Crl.R.P No.1541/2009 10
G. GIRISH, JUDGE
jsr
