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2025 Supreme(Ker) 2267
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).
The right to cross-examine witnesses is essential for a fair trial, and failure to provide such an opportunity can lead to miscarriages of justice.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code - Sections 313 and 357(3) - Three criminal revision petitions against conviction and sentence for dishonor of cheques - Trial court granted opportunity to accused but alleged cross-examination was not availed - High Court held that fair trial includes opportunity to cross-examine, thus allowed remand for cross-examination of witnesses and directed expedited disposal of cases. (Paras 8-10)
(B) The acceptance of unchallenged evidence in a trial even where the accused did not cross-examine is discussed; the principle that the accused must have the right to cross-examine witnesses is reaffirmed - Conviction based on unchallenged testimony can lead to miscarriages of justice if not appropriately scrutinized. (Paras 8-9)
| Table of Content |
|---|
| 1. facts of cheque dishonor and legal proceedings. (Para 2 , 3 , 4) |
| 2. appellate contentions regarding trial process. (Para 5 , 6 , 7) |
| 3. issues of cross-examination and unchallenged evidence. (Para 8 , 9) |
| 4. directive for remand to trial court. (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 himself was examined as PW2. Exts.
