Kerala High Court
Shoukkathali vs Sanu Varghese on 1 July, 2025
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:47991
CRL.REV.PET NO. 715 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
CRL.REV.PET NO. 715 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 16.06.2023 IN Crl.A NO.5
OF 2021 OF DISTRICT & SESSIONS COURT/RENT CONTROL APPELLATE
AUTHORITY, ALAPPUZHA ARISING OUT OF THE ORDER/JUDGMENT
DATED 09.12.2020 IN ST NO.115 OF 2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -III, CHERTHALA
REVISION PETITIONER/APPELLANT/ACCUSED:
SHOUKKATHALI
AGED 43 YEARS
S.O.KUNJUABDULLA, KATHIL PUTHIYETTI VEEDU,
IRINGATH. P.O, PAYYOLI, KOZHIKODE DISTRICT,
PIN - 673523
BY ADVS. SRI.K.K.DHEERENDRAKRISHNAN
SMT.N.P.ASHA
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 SANU VARGHESE
AGED 52 YEARS, S.O. VARGHESE,
VENKATTAMPALLY HOUSE, EZHUPUNNA SOUTH
P.O,CHERTHALA, NOW AT 65/B, 1ST MAIN 3RD F CROSS.
MALLESH PALAYA, BANGALORE, KARNATAKA., PIN -
560075
2025:KER:47991
CRL.REV.PET NO. 715 OF 2023
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2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADV SHRI.J.OM PRAKASH
OTHER PRESENT:
SR PP SRI HRITHWIK C S
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 01.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:47991
CRL.REV.PET NO. 715 OF 2023
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P.V. KUNHIKRISHNAN, J.
--------------------------------
Crl.R.P. No.715 of 2023
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Dated this the 01st day of July, 2025
ORDER
This Criminal Revision Petition is filed seeking the following reliefs:
to set aside the conviction and sentence imposed on the petitioner in S.T. No. 115/2019 of the Court the Judicial First Class Magistrate -III, Cherthala, confirmed, in Crl. Appeal No. 05/2021 dated 16.06.2023 of the Court of Session, Alappuzha and to acquit the revision petitioner of all charges or to remand the case to the court below for the fresh disposal.
(SIC)
2. Revision petitioner is an accused in ST No.115/2019 on the file of the Judicial First Class Magistrate Court-III, Cherthala. It is a prosecution initiated against the revision petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, NI Act).
3. The 1st respondent is the complainant in this case. Hereinafter parties are referred according to their status in the 2025:KER:47991 CRL.REV.PET NO. 715 OF 2023 4 trial court. The case of the complainant in short is as follows:
The complainant and the accused are close friends and doing hotel business. Being so, on 22/12/2015 at about 8 A.M, the accused requested for an amount of Rs.30,00,000/- to start a new hotel at Guruvayoor while complainant was residing at the hotel run by the accused at Chandiroor. Thereafter, on 23/12/2015, the complainant has transferred Rs. 10,00,000/- to the account of the accused from his account with Federal Bank, Vigna Nagar Branch, Bangalore. Thereafter, on 02/01/2016, the complainant has withdrawn Rs.20,00,000/- from his account and handed over the same to the accused at his Hotel at Chandiroor on 03/01/2016. By utilizing the said amount, the accused has started a hotel in name and style as White House at Guruvayoor. When the complainant demanded repayment of the said amount on 01/07/2017, the accused on 08/07/2017 issued a cheque dated 07/10/2017 for Rs.30,00,000/- drawn on HDFC bank Kakkanadu Branch in the car of the accused parked in front of his Hotel at Chandiroor. The said cheque when presented for collection through the HDFC Bank, Eramalloor Branch, it was dishonoured for want of funds and returned with 2025:KER:47991 CRL.REV.PET NO. 715 OF 2023 5 a memo dated 07/10/2017 stating reason 'funds insufficient'. The complainant then caused to issue a notice through his counsel, intimating the dishonour and demanding the cheque amount. The notice issued to his residential address was received on 21/10/2017 and the one which was sent to the address of his hotel at Guruvayoor was returned as unclaimed. Hence this complaint.
4. To substantiate the case, the complainant examined himself as PW1. Two other witnesses were also examined on the side of the complainant. Exts.P1 to P7 were marked on his side. The accused himself was examined as DW1. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the NI Act and sentenced him to pay a fine of Rs.33 lakhs. In default of payment of fine, he is directed to undergo simple imprisonment for three months. Aggrieved by the conviction and sentence, an appeal was filed before the Sessions Court, Alappuzha. The appeal was considered by the Additional Sessions Judge-II, Alappuzha. It is submitted that pending appeal, the matter was settled and a joint compounding petition 2025:KER:47991 CRL.REV.PET NO. 715 OF 2023 6 was filed. Subsequently the complainant withdrew from the settlement. Thereafter the accused did not appear before the court. Accordingly the appeal was dismissed on merit confirming the conviction and sentence. Thereafter this revision petition is filed.
5. Heard the learned counsel for the revision petitioner and the learned counsel for the 1st respondent.
6. The counsel for the revision petitioner raised several contentions. One of the contention raised by the revision petitioner is that, when a compounding petition is filed which is signed by both parties, one of the party cannot withdraw from settlement. It is also submitted that there is an illegality committed by the learned Magistrate while recording the evidence of the revision petitioner, who was examined as DW1. In the light of the judgment of the Apex Court in M/s.Mandvi Co-op. Bank Ltd. v. Nimesh B. Thakore [2010 (1) KHC 310 (SC)] and also the judgment of this Court in Kalladikkattil Mohammed Jamal v. State of Kerala and Another [2017 (4) KHC 272], the revision petitioner cannot give evidence based on affidavit. It is submitted that Section 145(2) of the NI Act is 2025:KER:47991 CRL.REV.PET NO. 715 OF 2023 7 not applicable as far as the revision petitioner is concerned. Admittedly the evidence of the revision petitioner who was examined as DW1 is based on an affidavit. That is against the principle laid down by the Apex Court in M/s.Mandvi Co-op. Bank Ltd's case (supra) and also the principle laid down by this Court in Kalladikkattil Mohammed Jamal's case (supra). On that short point, I think the impugned judgments can be set aside and the case can be remanded to the trial court. The revision petitioner and the 1st respondent can raise all the contentions before the trial court. But I make it clear that no denovo trial is necessary and the case can be continued from the stage of defence evidence. If the revision petitioner intends to be examined as a witness, he can adduce evidence. I also make it clear that the question regarding the withdrawal from the joint compounding petition also can be raised before the trial court at the appropriate stage.
Therefore, this Criminal Revision Petition is allowed in the following manner:
1. The judgment dated 16.06.2023 in Criminal Appeal No.05/2021 passed by the Sessions Court, Alappuzha and 2025:KER:47991 CRL.REV.PET NO. 715 OF 2023 8 also the judgment dated 09.12.2020 in ST No.115/2019 passed by the Judicial First Class Magistrate Court-III, Cherthala are set aside.
2. ST No.115/2019 on the file of the Judicial First Class Magistrate Court-III, Cherthala is restored.
3. The Judicial First Class Magistrate Court-III, Cherthala is directed to continue with the case from the stage of defence evidence. Since the case is registered in the year 2019, the learned Magistrate shall dispose the case as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment.
4. All the contentions raised by the revision petitioner and the 1st respondent are left open and they can agitate the same before the trial court at the appropriate stage.
5. The revision petitioner and the 1st respondent shall appear before the Judicial First Class Magistrate Court-III, Cherthala on 21.07.2025.
6. Registry shall return the TCR forthwith.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
2025:KER:47991
CRL.REV.PET NO. 715 OF 2023
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APPENDIX OF CRL.REV.PET 715/2023
PETITIONER ANNEXURES
Annexure1 CERTIFIED COPY OF THE JUDGMENT DATED
16.06.2023 IN CRL. APPEAL NO. 05/2021
OF THE COURT OF SESSION, ALAPPUZHA.
Annexure2 TRUE COPY OF THE JUDGMENT DATED
09.12.2020 IN S.T. NO. 115/2019 OF THE
COURT THE JUDICIAL FIRST CLASS
MAGISTRATE -III, CHERTHALA.