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2025 Supreme(Ker) 2198
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. KUNHIKRISHNAN, J.
Benjamin Abraham, S/o. K.A. Abraham – Petitioner
Versus
State of Kerala, Represented By Public Prosecutor, High Court of Kerala and Ors. – Respondents
Crl. Rev. Pet No. 634 of 2024, Crl. Rev. Pet No. 615 of 2024, Crl. Rev. Pet No. 616 of 2024
Decided On : 02-07-2025
For the Petitioner: Sri. K.K. Dheerendrakrishnan, Smt. N.P. Asha, Sri. Joseph Sebastian (Kollam)
For the Respondents: SR PP, Smt. Seetha S., Sri. V. Philip Mathews, Sri. Sabu Thomas (Kozhencherry)
Right to cross-examine witnesses is fundamental; failure to provide this opportunity can lead to a remand for a fair trial process.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code - Opportunity to cross-examine witnesses - Accused faced prosecution for cheque dishonor - Trial court imposed sentences based on unchallenged evidence - The petitioner requested cross-examination, which was denied due to latches. Court held that every accused has the right to cross-examine witnesses, leading to remand for this purpose. (Paras 8, 9, 10)
(B) Criminal appeal - Dismissal - Appellate court upheld the conviction and sentence despite the challenges raised regarding the absence of cross-examination opportunities. (Para 6)
Facts of the case:
The petitioner faced three connected criminal revisions for cheque dishonor; issued cheques were dishonored, and the complainant had since passed, complicating proceedings. The trial court found the petitioner guilty and imposed substantial sentences for each case.
Findings of Court:
The trial court's judgment remained largely based on the evidence of the complainant's power of attorney holder, which was unchallenged. The court felt the opportunity to cross-examine was crucial for fairness.
Issues: The main issues included the right to cross-examine and whether the unchallenged evidence could serve as a basis for conviction.
Ratio Decidendi: The court emphasized that the defendant’s right to cross-examine witnesses is fundamental to procedural justice, necessitating a remand for this purpose.
Result: Criminal Revision Petitions allowed, and cases remanded for cross-examination.
| Table of Content |
|---|
| 1. facts regarding cheque dishonor prompting legal action. (Para 2) |
| 2. accused issued bounced cheques. (Para 3 , 4) |
| 3. petitioner's appeal against conviction. (Para 5 , 7) |
| 4. cross-examination rights in summary trials. (Para 6 , 8 , 9) |
| 5. opportunity for cross-examination granted. (Para 10) |
ORDER :
These three revisions are filed by the same person and the party respondents are also same and therefore, these three cases are connected and disposing of by this common order.
2. The revision petitioner in these cases is the accused in ST Nos.4491/2020, 4492/2020 and 4493/2020 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta. It was a prosecution initiated against the revision petitioner by one Thomas Abraham. Thomas Abraham is no more and his legal heir is impleaded as additional 3rd respondent in these three cases.
3. The facts in these three cases as narrated in the trial court judgment are extracted hereunder :-
“Facts in ST 4491/2020
2. The averments contained in the complaint, in short, are as follows :- The accused voluntarily executed and issued cheque, bearing No.013085 dated 16/09/2020 drawn on the Axix Bank Limited, Ranni Branch for Rs.50,00,000/- (Rupees Fifty Lakhs only) to the complainant for discharging his debt. The complainant presented the cheque for collection through the Federal Bank, Kottathur – Kozhencherry Branch. It was dishonoured on 18/09/2020 with a memo stating that ‘Funds InsufÏcient’. On 25/09/2020 the complainant caused to issue legal notice to the accused intimating the factum of dishonour of cheque and demanded the cheque amount within 15 days. On 26/09/2020 it was duly served to the accused. The accused sent a reply on 23/10/2020 admitting the issuance of the cheque. He did not make payment. Hence the above case has been instituted.
Facts in ST 4492/20
3. The averments contained in the complaint, in short, are as follows :- The accused voluntarily executed and issued cheque, bearing No.013087 dated 16/09/2020 drawn on the Axix Bank Limited, Ranni Branch for Rs.75,00,000/- (Rupees Seventy Five Lakhs only) to the complainant for discharging his debt. The complainant presented the cheque for collection through the Federal Bank, Kottathur – Kozhencherry Branch. It was dishonoured on 18/09/2020 with a memo stating that ‘Funds InsufÏcient’. On 25/09/2020 the complainant caused to issue legal notice to the accused intimating the factum of dishonour of cheque and demanded the cheque amount within 15 days. On 26/09/2020 it was duly served to the accused. The accused sent a reply on 23/10/2020 admitting the issuance of the cheque. He did not make payment. Hence the above case has been instituted.
Facts in ST 4493/20
4. The averments contained in the complaint, in short, are as follows :- The accused voluntarily executed and issued cheque, bearing No.013086 dated 16/09/2020 drawn on the Axix Bank Limited, Ranni Branch for Rs.50,00,000/- (Rupees Fifty Lakhs only) to the complainant for discharging his debt. The complainant presented the cheque for collection through the Federal Bank, Kottathur – Kozhencherry Branch.
It was dishonoured on 18/09/2020 with a memo stating that ‘Funds InsufÏcient’. On 25/09/2020 the complainant caused to issue legal notice to the accused intimating the factum of dishonour of cheque and demanded the cheque amount within 15 days. On 26/09/2020 it was duly served to the accused. The accused sent a reply on 23/10/2020 admitting the issuance of the cheque. He did not make payment. Hence the above case has been instituted.”
4. Originally the above cases were filed before the Chief Judicial Magistrate Court, Pathanamthitta by the Power of Attorney Holder of the deceased complainant. That court took cognizance of the offence and thereafter the cases were made over to Judicial First Class Magistrate Court – II, Pathanamthitta. A joint trial of these three cases were ordered and the Power of Attorney Holder of the complainant was examined as PW1 and the complainant
