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2025 DIGILAW 2747 (KER)

Tess Thomas W/o Mathew Antony v. State of Kerala

2025-11-04

A.BADHARUDEEN

body2025
ORDER : 1. The sole accused in S.T. 1472 of 2020 on the files of the Judicial First Class Magistrate Court, Ramankari and the sole appellant in Criminal Appeal No.29 of 2023 on the files of the District & Sessions Court, Alappuzha has filed this Criminal Revision Petition under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita , 2023, challenging judgment in Criminal Appeal No.29 of 2023 dated 15.10.2024. The first respondent herein is the State of Kerala and the Second respondent is the complainant before the trial court. 2. Heard the learned counsel for the revision petitioner, the learned counsel for the second respondent and also heard the learned Public Prosecutor appearing for the first respondent. 3. I shall refer the parties in this revision petition as ‘accused’ and ‘complainant’ for convenience. 4. The brief facts of the case: The complainant filed a complaint before the Magistrate Court alleging that the accused committing offence under Section 138 of the Negotiable Instruments Act (for short ‘the N.I. Act’ hereinafter) by the accused. According to the complainant the accused borrowed Rs.9,00,000/- (Rupees Nine lakh only) from the complainant, viz; Rs.2,50,000/- (on 06.01.2018), Rs.2,00,000/- (on 15.01.2018) and Rs.4,50,000/- (on 20.04.2018), for arranging a job visa through the accused and her husband. After receipt of money, the accused failed to arrange the visa or to return the amount, when the complainant persistently demanded for return of the amount, the accused issued a cheque dated 14.08.2020 drawn on State Bank of India, Alappuzha Town Branch for the said amount. But, when the above said cheque was presented for collection, the same got dishonoured for want of sufficient funds. Even though notice was issued demanding repayment of the amount, the amount failed to be repaid. 5. The Magistrate Court took cognizance for the offence punishable under Section 138 of the N.I. Act and proceeded the trial. During the trial, PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant. DW1 was examined and Exts.D1 to D6 were marked on the side of the accused. 6. Thereafter, on appreciation of evidence, after hearing both sides, the learned Magistrate found that the accused committed offence punishable under Section 138 of the N.I. Act. During the trial, PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant. DW1 was examined and Exts.D1 to D6 were marked on the side of the accused. 6. Thereafter, on appreciation of evidence, after hearing both sides, the learned Magistrate found that the accused committed offence punishable under Section 138 of the N.I. Act. Accordingly, he was sentenced to undergo simple imprisonment for five months and to pay compensation of Rs.9,00,000/- to the complainant under Section 357 (3) of Code of Criminal Procedure (for short ‘Cr.P.C.’). In default of payment of compensation, simple imprisonment for a period of three months also was imposed. 7. Aggrieved by the judgment of the Magistrate Court, the revision petitioner preferred Criminal Appeal No.29 of 2023 before the Sessions Court, Alappuzha. The learned Sessions Judge accepted Exts.D7 to D9 documents produced by the accused before the appellate court and discussed the evidence in detail and finally confirmed the conviction while modifying the sentence, to undergo simple imprisonment till rising of the Court and to pay a compensation of Rs.9,00,000/- and by imposing simple imprisonment for three(3) months in default of payment of compensation. 8. The learned counsel for the accused vehemently canvassed that in this case the transaction of Ext.P1 cheque is not proved. To the contrary, the case of the accused is that she had issued Ext.P1 cheque to one Peter in connection with availing of loan from HDFC Bank. DW1, an official of the Bank was examined. According to the learned counsel, as per Ext.D8 deposition of Peter C.John, which has been marked in appeal, Peter C.John, supported the case of the accused. Since the case of the complainant is not proved, the complainant would lose his chance to canvas presumptions under Section 118 and 139 of the N.I. Act. Thus the verdicts impugned would require interference. 9. The learned counsel for the complainant, on the other hand, submitted that the concurrent finding of conviction and the modified sentence imposed by the learned Sessions Judge need not be interfered in any manner since the both Courts given emphasis to the evidence of PW1 to prove the transaction as stated by the complainant supported by Exts.P1 to P5. He also submitted that eventhough DW1 was examined he never given evidence supporting the contention of the accused that Ext.P1 was a cheque entrusted to Peter. He also submitted that eventhough DW1 was examined he never given evidence supporting the contention of the accused that Ext.P1 was a cheque entrusted to Peter. Therefore, the conviction of sentence do not require any interference. 10. On perusal of the evidence available, it is perceivable that in the verdicts impugned the trial court as well as the appellate court given emphasis to the evidence of PW1 the complainant to find commission of offence punishable under Section 138 of the N.I. Act by the accused. Here PW1 filed affidavit in lieu of chief examination and the same was in tune with the averments in the complaint, specifically deposing that the accused borrowed the amount of Rs.2,50,000/- on 06.01.2018, Rs.2,00,000/-on 15.01.2018 and Rs.4,50,000/- on 20.04.2018. He also deposed that the money paid on 06.01.2018 and 15.01.2018 were given to the father in law of the accused on behalf of the accused. He deposed about the failure of the accused in providing the employment visa as assured and also non return of the money. According to PW1, then on repeated demands the accused issued Ext.P1 cheque bearing No.319796 dated 14.08.2020, for Rs.9,00,000/- with assurance of encashment. But on presentation of the cheque for collection, the cheque was dishonoured for want of funds. Exts.P2 to P5 dishonour memo dated 17.09.2020, copy of legal notice dated 23.09.2020, Postal receipt dated 23.09.2020 and unserved notice with Ad card dated 25.09.2020 were marked through PW1. During cross examination of PW1, the defense case as to entrustment of Ext.P1 to Peter C.John was suggested and got answered in the negative. 11. On perusal of the evidence relied on by DW1, DW1 did not support the case of the accused to the effect that Ext.P1 was the cheque entrusted to Peter C.John as contended by the accused. Eventhough the accused did not take any steps to summon and examine Peter C.John in this case, in support of the contention that Ext.P1 was entrusted to Peter, before the appellate court, Ext.D8 copy of deposition of Peter C.John, in another case, i.e. S.T.No.5291 of 2020 on the files of the Judicial First Class Magistrate Court, Pala, where he had given evidence of PW3 had been placed. In paragraph No.17 of the appellate court judgment, the learned Sessions Judge observed that: “in Ext.D8 above said Peter John specifically stated that he has no knowledge about R1 and appellant.” Thus, if reliance is given to D8, ignoring the fact that the said document was not tendered in evidence as per the proceedings of law, the same would show that the case advanced by the accused as to entrustment of Ext.P1 at the hands of Peter C.John is not proved even remotely. 12. It is true that in this case the accused raised the allegation against the complainant as evident from Exts.D1 to D6 that he had made a complaint before the District Police Chief, Alappuzha on 09.07.2020 against the complainant and her husband and a case was registered alleging commission of offence under Section 420 read with 34 of the Indian Penal Code, by them. Mere lodging of complaint against the complainant who is in possession of the cheque by itself would not absolve the liability of the accused or disentitles the twin presumptions under Section 118 and 139 of the N.I. Act in terms of the holder of the cheque. Here, as per the evidence of PW1, Ext.P1 was issued to him in discharge of the liability for Rs.9,00,000/- obtained by the accused from the complainant offering job visa. During cross examination nothing extracted and disbelieve the version of PW1 in any manner. The documents relied on by the accused as well as the evidence of PW1, in no way would show that the case advanced by the complainant is not believable. 13. In a prosecution alleging commission of offence under Section 138 of the N.I. Act, an initial burden is cast upon the complainant, to prove the transaction, passing of consideration and execution of the cheque and on discharging the said initial burden the complainant could very well get the benefit of presumptions under Sections 118 and 139 of the N.I. Act. It is true that the said presumptions are rebuttable and it is the duty of the accused to rebut the same to the satisfaction of the Court, based on the evidence available. It is true that the said presumptions are rebuttable and it is the duty of the accused to rebut the same to the satisfaction of the Court, based on the evidence available. On appreciation and reappreciation of evidence by the trial court and the appellate court, both the courts concurrently found that the accused committed offence punishable under Section 138 of the N.I. Act relying on the evidence of PW1 and Exts.P1 to P5, negating the case advanced by the accused. In fact, no reasons could be found to hold that the verdicts of the trial court and the appellate court within the teeth of any illegality or perversity in any manner, so as to invoke the power of revision available to this Court. Thus the conviction stands confirmed. Coming to the sentence, the appellate court imposed the minimum possible sentence, therefore sentence also would not require any interference. 14. Thus, the concurrent verdicts do not require any interference and the same are confirmed. In the result, this revision petition is dismissed.