2025:KER:24932 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946 CRL.REV.PET NO. 1661 OF 2012 AGAINST THE JUDGMENT DATED 10.02.2012 IN Crl.A NO.461 OF 2010 OF II ADDITIONAL SESSIONS COURT, KOLLAM AGAINST THE JUDGMENT DATED 06.10.2010 IN ST NO.178 OF 2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KOLLAM REVISION PETITIONER/APPELLANT IN CRL.A.NO.461/2010/ ACCUSED IN ST.178/2009: VIJAYAN, AGED 55 YEARS, S/O.THANKAPPAN, KATTIL KUNJAN PILLAI HOUSE, NEAR VELLAVIL CO, KUTTICHIRA, T.K.M.C.(PO), KOLLAM DISTRICT. BY ADV SRI.P.V.DILEEP RESPONDENTS/RESPONDENT NO.2 IN CRL.A.NO.: 1 MANIKUTTAN AGED 41 YEARS S/O.SANKU, KOCHUVILA VEEDU, PUNTHALATHAZHAM, KILIKKOLLUR P.O., NETHAJI NAGAR-5, KOLLAM DISTRICT-673351. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. T.K.VIPINDAS-PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:24932 CRL.REV.PET NO. 1661 OF 2012 2 ORDER This criminal revision petition is preferred impugning the judgment of the learned 2nd Additional Sessions Judge, Kollam in Crl.Appeal No.461/2010 dated 10.02.2012. 2. The revision petitioner herein was the accused in S.T. No.178/2009 on the files of the Judicial Magistrate of First Class-III, Kollam and the appellant in Crl.Appeal No.461/2010 for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as ‘the Act’]. The 1st respondent is the complainant. 3. The case of the 1st respondent/complainant is that, the accused had borrowed an amount of Rs.60,000/- from him and towards the discharge of the said liability, had issued a cheque drawn on Canara Bank, Thrikkovilvattom Branch. 2025:KER:24932 CRL.REV.PET NO. 1661 OF 2012 3 4. On presentment, the cheque was returned unpaid stating the reason ‘funds insufficient’. 5. The complainant issued a statutory notice and thereafter filed the complaint. 6. In order to prove his case, the complainant was examined as PW1 and Exts.P1 to P5 were marked. Thereafter, the accused was examined under Section 313(1)(b) of the Code of Criminal Procedure. The trial court, upon hearing the revision petitioner and the 1st respondent, convicted and sentenced the accused in the following manner: “The accused is sentenced to undergo simple imprisonment for a period of 6 months for the offence under Section 138 of N.I.Act. He is ordered to pay a sum of Rs.60,000/- to the complainant as compensation under Section 357(3) Cr.P.C. In default of payment of compensation, he shall undergo simple imprisonment for a further period of three months.” 7. Aggrieved by the judgment of the trial court, 2025:KER:24932 CRL.REV.PET NO. 1661 OF 2012 4 the revision petitioner/accused approached the Additional Sessions Court and preferred Crl.Appeal No.461/2010. 8. The learned Additional Sessions Judge partly allowed the appeal. The judgment of conviction is confirmed and the order of sentence is modified as follows: “The appellant/accused shall undergo simple imprisonment till rising of court and to pay a compensation of Rs.65,000/-(Rupees sixty five thousand only) in default to undergo simple imprisonment for three months. The compensation may be paid to the complainant directly and convince the court below regarding the payment or deposit the amount before court below so as to disburse to the complainant.” 9. Aggrieved by the judgment of the learned Additional Sessions Judge, accused preferred this revision petition. 10. I have heard the learned counsel for the revision petitioner and the respondents. 11. Learned counsel for the 1st respondent would 2025:KER:24932 CRL.REV.PET NO. 1661 OF 2012 5 submit that the impugned judgment of the learned Sessions Judge is legally sustainable and no interference from this Court is warranted. The complainant has succeeded in proving the ingredients of Section 138 of the Act, beyond reasonable doubt. Moreover, the transaction is a genuine one. Both the trial court and appellate court have correctly appreciated the evidence on record and arrived at a proper conclusion. 12. Per contra, the learned counsel for the revision petitioner/accused would submit that the ingredients of Section 138 of the Negotiable Instruments Act are not satisfied by the complainant. The court below had failed to note that, there is no legally enforceable debt as against the petitioner. The disputed cheque was not issued towards the discharge of a legally enforceable debt. 13. It is further submitted that the disputed 2025:KER:24932 CRL.REV.PET NO. 1661 OF 2012 6 cheque was not supported by consideration. The trial court and appellate court ought not have invoked the presumption under Section 139 of the Act. The appreciation of evidence by the trial court and the appellate court are wrong and incorrect. The execution of the cheque is not proved by the complainant. 14. The complainant has failed to discharge the initial burden as to the drawal, execution and the handing over of the cheque. Moreover, the revision petitioner/accused has succeeded in rebutting the presumption provided under Section 139 of the Act by a lesser standard of preponderance of probability. 15. The learned counsel for the revision petitioner/accused submitted that, even though he has urged several grounds in the revision memorandum, he is not intending to argue the matter on merits instead, the learned 2025:KER:24932 CRL.REV.PET NO. 1661 OF 2012 7 counsel seeks six months time for effecting payment to the complainant. 16. Upon hearing the submissions and on perusal of records, I am of the view that Criminal Revision Petition can be allowed in part with the following directions. (a) The sentence of imprisonment till rising of the court is maintained. (b) The compensation awarded and the default sentence are also maintained. (c) The revision petitioner/accused shall appear before the trial court on or before 20.06.2025 to receive the sentence. (d) Three months time is granted to the revision petitioner for making payment. (e) The court below shall execute the order in the modified manner. Sd/- K. V. JAYAKUMAR JUDGE msp