IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.Rev.Pet.No. 2041 of 2010() ------------------------------ CRA.691/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.531/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): --------------------- GOPALAKRISHNA PILLAI, AGED 72 YEARS S/O.GOVINDA PANICKER, KALATHIL HOUSE, MANAMPALLY MURI, PATHIYOOR PO, PARINGALA VILLAGE BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- 1. SARASAN.C.K. S/O.LATE KARTHA PANICKER, SARAS, ANJILIPRA MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA. 2.STATE OF KERALA, REP. BY PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.V.MADHUSUDHANAN FOR R1 SRI.T.ISSAC FOR R1 ADV.SRI.B.UNNIKRISHNA KAIMAL FOR R1 ADV.SRI.V.TEK CHAND P.P FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2041 of 2010 --------------------------------- Dated this the 2nd day of September 2010 O R D E R Challenge in this revision petition is against the judgment dated 30.11.2009 in C.C.No.531/2005 of the Judicial First Class Magistrate, Mavelikara and the judgment dated 22.11.2008 in Crl.A.No.691/2007 of the Court of Addl. Sessions Judge-I, Mavelikara as the revision petitioner is convicted and sentenced u/s.138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused borrowed a sum of Rs.3,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 18.10.2004, which when presented for encashment dishonoured as there was no sufficient fund in Crl.R.P.No.2041 of 2010 -: 2 :- the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court, Mavelikara by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.531/2005. During the trial of the case, PW1 was examined and Exts.P1 to P11 were marked from the side of the complainant. Finally the trial court found that the accused is guilty and accordingly he is sentenced to undergo simple imprisonment for 3 months and also directed to pay compensation of Rs.2,00,000/- to the complainant and the default sentence is fixed as 2 months imprisonment. 3. Though an appeal was filed at the instance of the revision petitioner challenging the conviction and sentence, by judgment dated 22.11.2008 in Crl.A.No.691/2007, the court of Addl. Sessions Judge-I, Mavelikara dismissed the Crl.R.P.No.2041 of 2010 -: 3 :- appeal confirming the conviction and sentence. It is the above judgments of the courts below are challenged in this revision petition. 4. I have heard Sri.S.Rajeev, the learned counsel appearing for the revision petitioner as well as Sri.B.Unnikrishna Kaimal, the learned counsel appearing for the 1st respondent/complainant and also closely perused the impugned judgments of the courts below. 5. The learned counsel for the revision petitioner submitted that complainant was examined in chief as PW1, and there was no cross examination for and on behalf of the accused/revision petitioner. It is the submission of the learned counsel for the revision petitioner that though the junior counsel appearing for the accused sought time to cross examine PW1, the said request was rejected and subsequently, though an application for reopening the evidence of prosecution was filed u/s.311 of Cr.P.C., the same was also dismissed and in fact the trial court as well as the appellate court relied and acted upon the unchallenged Crl.R.P.No.2041 of 2010 -: 4 :- evidence of prosecution for convicting the accused and imposing the sentence. The learned counsel for the revision petitioner also pointed out that there was another complaint pending in the same trial court in which the accused is same person and the counsel appearing for him was also same in that case. In that case, the trial court passed similar judgment and in that case also, the complainant was not cross examined as time was not granted to the counsel for the accused therein. Against the said case an appeal was filed and by judgment dated 30.1.2009 in Crl.A.No.692/2007, the court of Addl. Sessions Judge-II, Mavelikara allowed the appeal on the ground that PW1 therein was not cross examined. But in the present case such a plea was not considered by the lower appellate court and dispose of the appeal confirming the conviction and sentence. 6. The above submission of the learned counsel for the revision petitioner is not controverted by the counsel appearing for the respondent/complainant. 7. In the light of the above facts and circumstances, I Crl.R.P.No.2041 of 2010 -: 5 :- am of the view that the trial court as well as the lower appellate court are illegal and improper in convicting the revision petitioner u/s.138 of the Negotiable Instruments Act without affording ample opportunity to advance defence case, and not granting time to cross examine PW1 either at the time of the prosecution evidence itself or upon petition filed u/s.311 of Cr.P.C. The defence is denied the chance to rebut the presumption if any and therefore, the judgments of the courts below cannot be approved. Therefore, the matter requires reconsideration by the trial court for which, necessary the case has to be remanded back for fresh consideration of the entire matter after giving an opportunity to the revision petitioner to cross examine PW1 and also for adducing evidence, if any, for and on behalf of the defence. In the result, this revision petition is disposed of setting aside the judgment of the trial court in C.C.No.531/2005 of the Judicial First Class Magistrate, Mavelikara and the judgment dated 22.11.2008 in Crl.A.No.691/2007 of the Court of Addl. Sessions Judge-I, Crl.R.P.No.2041 of 2010 -: 6 :- Mavelikara and the matter is remanded back to the trial court for fresh disposal after giving an opportunity to cross examine PW1 and also to adduce defence evidence, if any, and accordingly the trial court is directed to dispose of C.C.No.531/2005 afreshly within 6 months from the date of receipt of a copy of this judgment, which shall be produced by the revision petitioner/accused in the trial court on or before 6th October, 2010 and the revision petitioner as well as the respondent/complainant is directed to appear before the trial court on 6th October, 2010 on which date the trial court is directed to take up the matter and proceed in accordance with procedure and law and to dispose the same as directed above. Crl. Revision Petition is disposed of as above. V.K.MOHANAN, JUDGE. Jvt