Kerala High Court
Sivanandan.A vs K.H.Mohammed on 20 August, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.No. 539 of 2012
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2025:KER:64196
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 20TH DAY OF AUGUST 2025 / 29TH SRAVANA, 1947
CRL.REV.PET NO. 539 OF 2012
AGAINST THE JUDGMENT DATED 17.01.2012 IN Crl.A NO.22 OF 2009
OF SESSIONS COURT, KASARAGOD ARISING OUT OF THE JUDGMENT
DATED 23.12.2008 IN CC NO.527 OF 2007 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I, HOSDRUG
REVISION PETITIONER/APPELLANT/ACCUSED:
SIVANANDAN.A.
S/O.KUNHIRAMAN, AGED 45 YEARS,
EYYAKKAD, P.O.UDINUR P.O.,
NORTH THRIKARIPUR VILLAGE,
HOSDURG TALUK, KASARAGOD DISTRICT.
BY ADV SHRI.KALEESWARAM RAJ
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 K.H.MOHAMMED
S/O.KUNHI MOIDEEN KUTTY, AGED 45 YEARS,
KAIPPAD PADNE, P.O.PADNE,
KASARGODE DISTRICT-671 312.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SHRI.K.P.HARISH
PUBLIC PROSECUTOR
SRI.SANGEETHA RAJ.N.R-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 20.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Rev.Pet.No. 539 of 2012
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2025:KER:64196
ORDER
This criminal revision petition has been filed challenging the concurrent finding of conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I.Act').
2. The petitioner is the accused and respondent No.1 is the complainant in C.C.No.527 of 2007 on the files of the Judicial First Class Magistrate Court-I, Hosdurg (for short, 'the trial court') filed under Section 142 of the N.I.Act alleging offence under Section 138 of the N.I.Act. The case of the complainant/respondent No.1 in short is that the accused/petitioner borrowed a sum of Rs.75,000/- from him and towards the discharge of the said debt, Ext.P2 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, there was no Crl.Rev.Pet.No. 539 of 2012 ..3..
2025:KER:64196 compliance. Hence, the prosecution was launched.
3. Before the trial court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the side of the defence, DW1 to DW3 were examined. After trial, the trial court found the accused/ petitioner guilty for the offence under Section 138 of the N.I.Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for four months and to pay a compensation of Rs.75,000/- to the complainant/respondent No.1 under Section 357(3) of Cr.P.C., in default, to suffer simple imprisonment for one month. The petitioner preferred appeal before the Sessions Court, Kasaragod (for short, 'the appellate court') as Crl.Appeal No. 22 of 2009. Before the appellate court, the appellant who is the petitioner herein filed a petition to send Ext.P2 cheque for expert opinion. It was alleged in the said petition that the cheque was filled up by the clerk of the Advocate, who Crl.Rev.Pet.No. 539 of 2012 ..4..
2025:KER:64196 appeared for the petitioner before the trial court. The appellate court remanded the case to the trial court to consider the petition filed by the petitioner to send Ext.P2 cheque for expert opinion afresh. The said order of the appellate court was challenged by respondent No.1 herein before this Court in Criminal Revision Petition No.1772 of 2010. This court as per the order dated 06.09.2011, set aside the order of remand by the appellate court and directed the appellate court to hear the appeal on merits afresh and dispose of the same in accordance with law. It was observed that while disposing of the appeal, if the appellate court finds that there is ground for remitting the case for any reason whatsoever for further enquiry by the trial court, the appellate court is free to pass appropriate orders in that regard.
4. After remand, the appellate court heard the parties again and dismissed Crl.Appeal No.22 of 2009 as per the Crl.Rev.Pet.No. 539 of 2012 ..5..
2025:KER:64196 judgment dated 17.01.2012. This revision petition has been filed by the petitioner, challenging the said judgment of the appellate court as well as the judgment of the trial court dated 23.12.2008.
5. I have heard Sri.Kaleeswaram Raj, the learned counsel for the petitioner, Sri.K.P.Harish, the learned counsel for the respondent No.1 and Sri.Sangeetha Raj N.R., the learned Public Prosecutor.
6. The learned counsel for the petitioner submitted that the right of the accused to adduce defence evidence is a valuable right and the accused has every right to exercise that right even at the appellate stage. The learned counsel further submitted that the appellate court committed gross illegality in not allowing the petition filed by the petitioner to send Ext.P2 cheque for expert opinion. The learned counsel also submitted that the complainant has failed to prove the execution of the cheque and the defence evidence adduced Crl.Rev.Pet.No. 539 of 2012 ..6..
2025:KER:64196 by the accused through DW1 to DW3 is more probable. On the other hand, the learned counsel for the respondent No.1 submitted that the complainant had succeeded in proving the issuance and execution of the cheque and the defence evidence adduced by the accused is insufficient to rebut the presumption available to the complainant under Sections 118 and 139 of the N.I. Act. The learned counsel further submitted that the petition for sending Ext.P2 cheque for expert opinion was filed by the accused before the appellate court only to drag the proceedings and the appellate court rightly rejected the same.
7. To prove the case of the complainant, he himself gave evidence as PW1. He adduced evidence in tune with the averments in the complaint. He deposed that the accused borrowed a sum of Rs.75,000/- from him and towards the discharge of the said debt, Ext.P2 cheque was issued. The accused has admitted the signature in the cheque. According Crl.Rev.Pet.No. 539 of 2012 ..7..
2025:KER:64196 to him, the cheque in question was issued by him in blank to one Narayanan, who was conducting a chitty and the said cheque was misused and a false complaint was instituted through the complainant. However, the so-called Narayanan was not examined. Even though PW1 was cross-examined in length, nothing tangible could be extracted from his evidence to discredit his testimony. The complainant has succeeded in proving the transaction, execution and issuance of the cheque. The trial court as well as the appellate court found that the evidence adduced by the defence through DW1 to DW3 is not sufficient to rebut the presumption available to the complainant under Sections 118 and 139 of the N.I.Act. I see no reason to take a different view in this revision petition.
8. The learned counsel for the petitioner submitted that the petitioner should be given an opportunity to prove that the entries in the cheque were not filled up by him. The petitioner did not file a petition to send the cheque for expert Crl.Rev.Pet.No. 539 of 2012 ..8..
2025:KER:64196 opinion before the trial court. When PW1 was examined, there was no case for the petitioner that it was filled up by the advocate clerk. According to the petitioner, a petition was filed by the respondent No.1 before the trial court to receive the power of attorney and the handwriting in the affidavit filed in support of the said petition and the handwriting in the cheque is one and the same. It is alleged that the handwriting in the said affidavit and in the cheque is that of the advocate clerk. Thus, it is evident that the petitioner had knowledge that it was the advocate clerk who filled up the cheque at the trial stage itself. But no question was put to PW1 when he was in the box in that line. Even a suggestion was not made to PW1 that it was the advocate clerk who filled up the entries in the cheque. The Supreme Court in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446] has held that a blank cheque leaf, voluntarily signed and handed over by accused, which is towards some payment, would attract Crl.Rev.Pet.No. 539 of 2012 ..9..
2025:KER:64196 presumption under Section 139, in the absence of any cogent evidence to show that cheque was not issued in discharge of a debt. It was further held in that decision that, mere filling up of a cheque by payee would not invalidate cheque and it does not amount to alteration. The dictum in the said decision squarely applies to the facts of this case. Thus, no purpose will be served by sending the cheque for expert opinion inasmuch as the signature therein is admitted and the complainant has succeeded in proving the transaction, execution and issuance of the cheque. Therefore, I see no reason to interfere with the concurrent finding of conviction.
9. The learned counsel for the petitioner submitted that the substantive sentence may be reduced till the rising of the court. I find some force in the said argument. The transaction is purely civil in nature. Taking into consideration the facts and circumstances of the case, the substantive sentence is reduced till the rising of the court, retaining the Crl.Rev.Pet.No. 539 of 2012 ..10..
2025:KER:64196 compensation amount and default sentence. The petitioner is granted three months' time to appear before the trial court to receive the sentence till the rising of the court and to deposit the compensation amount.
This criminal revision petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE APA