2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -1- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 CRL.REV.PET NO. 6 OF 2017 AGAINST THE JUDGMENT, CONVICTION AND SETENCE DATED 22.08.2016 IN Crl.A NO.171 OF 2015 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE-IV, THODUPUZHA AND JUDGMENT, CONVICTION AND SENTENCE DATED 30.10.2015 IN ST NO.142 OF 2014 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS- II, THODUPUZHA REVISION PETITIONER/APPELLANT/ACCUSED: SUNIL P.ELIAS, AGED 47 YEARS, S/O.ELIAS, PAYYANIKKAL HOUSE, VANNAPPURAM KARA, THODUPUZHA TALUK, PIN-685 607. BY ADVS. SRI.C.M.TOMY SRI.BALU TOM SRI.MATHEW SKARIA RESPONDENTS/RESPONDENT/COMPLAINANT/STATE: 1 THE THODUPUZHA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.4388 REPRESENTED BY ITS THEN SECRETARY, MARYKUTTY T.T., W/O.AUGUSTINE,AGED 58 YEARS, PUTHIYEDATHU HOUSE, AVOLI KARA, MUVATTUPUZHA VILLAGE, NOW TO BE REPRESENTED BY ITS PRESENT SECRETARY, THODUPUZHA, PIN-685 584. 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -2- 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 SRI.P.V. BABY, SC FOR THODUPUZHA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURUAL DEVELOPMENT BANK LTD R2 SMT. NEEMA T.V., SENIOR PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -3- P.V. BALAKRISHNAN, J. -------------------------------------------------- Crl.Rev.Pet. No.6 of 2017 -------------------------------------------------- Dated this the 28th day of March, 2025 ORDER The revision petitioner is the accused in S.T.No.142/2014 on the files of Judicial First Class Magistrate-II, Thodupuzha. He was convicted and sentenced by that court to undergo simple imprisonment for a period of six months under Section 138 of the Negotiable Instruments Act (hereinafter referred to as N.I. Act) and to pay a compensation of Rs.1,82,403/- under Section 357(3) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C) with a default clause. Aggrieved by the conviction and sentence, he preferred Crl.Appeal No.171/2015 before the Additional Sessions Court-IV, Thodupuzha. By judgment dated 22.08.2016, the appellate court upheld the conviction passed by the trial court under Section 138 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -4- of the N.I. Act but modified the sentence to one of simple imprisonment for a period of three months under Section 138 of the N.I. Act. The accused was also directed to pay a compensation of Rs.1,82,403/- under Section 357(3) of Cr.P.C. Aggrieved by the afore judgment, the present revision petition has been filed by the accused. 2. The complainant is the Primary Co-operative Agricultural and Rural Development Bank, Thodupuzha, which is represented by its Secretary. It is alleged that the accused had availed a loan for Rs.1,00,000/- from the Bank agreeing to pay interest and commission. Two sureties were also there for the loan transaction and they executed a demand promissory note. It is also alleged that the accused at that time, issued four signed blank cheque leaves, undertaking that in case of default in payment of loan, the cheque can be filled up by the complainant and presented for collection. Accordingly, when there was a default, a notice was issued to the complainant intimating the 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -5- same and since there was no response, the complainant filled up Ext.P7 cheque and presented it on 10.12.2012. But the cheque got dishonoured for the reason 'funds insufficient'. 3. The learned counsel for the revision petitioner, Sri.C.M.Tomy, contended that both the trial court and the appellate court did not properly appreciate the evidence and has arrived at a wrong conclusion of guilt against the accused. He argued that PW1, who has been examined from the side of the complainant to prove the execution of the cheque, does not have any direct knowledge regarding the transaction or the execution of the cheque. He relied on the decision in Padma Conductors Pvt. Ltd. v. MIRC Electronics [2024 (1) KHC 531] to contend that unless the complainant proves the execution of the cheque by examining a person who had witnessed it, the prosecution is bound to fail. He also, by relying on the evidence of PW1, argued that the cheque in question has not been issued in the present transaction, but for an earlier transaction, which was closed by 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -6- the accused. Hence, according to the learned counsel, Ext.P7 cheque cannot be stated to be one issued for enforcing a legally enforceable debt. 4. Per contra, the learned counsel for the 1st respondent, Sri.P.V.Baby, contended that the contentions now raised by the revision petitioner were never raised before the two forums in which he contested the case. He submitted that the accused has also not disputed the signature in Ext.P7 cheque and has not replied to Ext.P5 notice, wherein the complainant clearly pointed out his intention to fill up the cheque and present it for collection due to the default committed by the accused. He argued that since the signature is admitted, the presumption under Section 139 gets attracted and the accused has failed in rebutting the same. 5. On an anxious consideration of the rival submissions and the materials on record, I find considerable merit in the submissions made by the learned counsel for the 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -7- revision petitioner. First of all, it is to be seen that the specific case of the complainant is that the cheque in question has been issued by the accused for a loan transaction which he availed on 07.01.2009. It is averred in the complaint that on that day, when the accused received the loan amount of Rs.1,00,000/-, he had signed and issued Ext.P7 cheque, with an undertaking that in case of default, the complainant will be at liberty to fill up the cheque and present it for collection. Now going through the evidence of PW1, it is to be seen that he has turned turtle from the afore version and has deposed that the cheque in question has not been issued in the transaction as alleged in the complaint. According to PW1, Ext.P7 signed blank cheque was issued for an earlier loan transaction of Rs.50,000/- availed by the accused, which he subsequently cleared off. His evidence also reveals that the cheque which was thus given for the first loan transaction was never returned back and has been adjusted, when the accused availed the second loan for Rs.,1,00,000/-. The 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -8- afore version of PW1 cuts the root of the complainant's case and shows that the version of the complainant is totally false. 6. Apart from the above, going by the complaint, it is to be seen that Ext.P7 cheque dated 10.12.2012 has been issued on 07.01.2009 when the loan was availed by the accused. The evidence of PW1 would clearly go to show that it was only on 30.09.2013, he has taken charge as the Secretary of the Bank and has started prosecuting this case as per Ext.P2 authorisation. His evidence also shows that he was not at all present at the time when the transaction took place and when the cheque was allegedly issued by the accused. In other words, PW1 is a person, who has not witnessed the issuance and execution of the cheque by the accused. As held by this Court in Conductors' case (cited supra), it is the burden of the complainant to prove the issuance and execution of the cheque. Even if the complainant is a company, the complainant must, by examining persons who have direct knowledge about the transaction and the issuance of the 2025:KER:27888 Crl.Rev.Pet No.6 of 2017 -9- cheque, prove the execution. In the present case, in the absence of evidence to prove the issuance and execution of the cheque, I have no hesitation in finding that the complainant has failed to prove the execution of the cheque. 7. For the reasons stated afore, I find that the impugned conviction and sentence passed against the revision petitioner/accused cannot be sustained. In the result, this Criminal Revision Petition is allowed and the conviction and sentence passed against the revision petitioner/accused in S.T.No.142/2014 by the Judicial First Class Magistrate Court-II, Thodupuzha and as confirmed by the Additional Sessions Court-IV, Thodupuzha in Crl.Appeal No.171/2015 are set aside and the revision petitioner/accused is set at liberty. Sd/- P.V. BALAKRISHNAN JUDGE bpr