IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 Crl.Rev.Pet.No. 2773 of 2007() ------------------------------ CRA.826/2005 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.58/2003 of JUDL.MAGISTRATE OF FIRST CLASS,KOYILANDY .................... REVN. PETITIONER/appellant/accused: --------------------- SADASIVAN,S/O.K.V.POOJARI,AGED 59, TREASURER (RETIRED) RESERVE BANK OF INDIA, THIRUVANANTHAPURAM, PRESENTLY RESIDING AT OORTHADATHIL HOUSE, THIRUVAMBADY POST,CALICUT. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN SMT.JINNY JAMES RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. MOIDEEN,S/O.KUNJIATHU HAJI, MANDATH HOUSE,KOZHUKKALLUR AMSOM DESOM, KOYILANDY,KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JACOB SEBASTIAN FOR R1 R2 BY PUBLIC PROSECUTOR P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.2773 OF 2007 ------------------------------------------ Dated 5th February 2009 O R D E R Revision petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act by Judicial First Class Magistrate, Koyilandy. He is challenging the conviction as confirmed by the Additional Sessions Judge, Kozhikode in Crl.A.826/2005 in this revision. Ext.P4 is the notice sent under Section 138(b) of Negotiable Instruments Act demanding the amount covered by Ext.P1 cheque dated 1/11/2002. In Ext.P4 the case of the first respondent was that revision petitioner approached him and promised to arrange a job for his son and for that purpose as expense he demanded Rs.1,00,000/- and believing the representation, first respondent paid Rs.1,00,000/- and when revision petitioner failed to arrange the job, first respondent demanded the money back and then Ext.P1 cheque was issued which was dishonoured when presented for encashment. Revision petitioner though CRRP 2773/07 2 received Ext.P4 notice, did not send a reply. The complaint was filed thereafter. In the complaint also case of the first respondent was that he and the revision petitioner have acquaintance and while so, revision petitioner promised to arrange a job for the son of the first respondent, provided first respondent pays Rs.1,00,000/- towards the expenses and believing that words first respondent paid Rs.1,00,000/-. It is his further case that when revision petitioner failed to arrange the job, first respondent demanded the money back and then revision petitioner issued Ext.P1 cheque dated 1/11/2002. Said recitals itself show the cheque was not issued on 1/11/2002 but some day anterior to that day. Neither in Ext.P4 notice nor in the complaint first respondent disclosed when he paid Rs.1,00,000/- to the revision petitioner. When first respondent was examined as PW1, his case in chief examination was that he and revision petitioner have acquaintance and son of the first respondent was unemployed and revision petitioner promised to arrange a job to him, provided first respondent pays Rs.2,00,000/- and first respondent believing the words paid Rs.1,00,000/- and revision petitioner had agreed to arrange the job CRRP 2773/07 3 within a period of six months. It is the version of PW1 that when revision petitioner failed to arrange the job within the period of six months, he contacted first respondent and then first respondent got convinced that revision petitioner will not arrange a job for his son and therefore, first respondent demanded back Rs.1,00,000/- which was paid earlier. It is his version that towards repayment of that amount, Ext.P1 cheque dated 1/11/2002 was issued. Revision petitioner is disputing the issuance of the cheque or the promise to arrange a job or receipt of Rs.1,00,000/-. In fact, it is the definite case of the revision petitioner that he had no acquaintance with first respondent and he had issued Ext.P1 cheque to one Raveendran Master, from whom first respondent had borrowed money and later it was repaid also. In view of the specific case of revision petitioner that he has no acquaintance with first respondent, PW1 was cross examined to disprove the claim of acquaintance. As against the case in Ext.P4 notice and the complaint, his version in chief examination as PW1 was that revision petitioner was introduced to him by one of his friends and he had seen revision petitioner only five times inclusive of the CRRP 2773/07 4 day on which the cheque was issued. If that version of PW1 is true, on the first day revision petitioner should have been introduced to first respondent by his friend and on the last day Ext.P1 cheque should have been issued. If so, the transaction could have been only on any of the three remaining days. To establish that first respondent did not even meet the revision petitioner, PW1 was cross examined by the learned counsel. PW1 was asked whether revision petitioner is fair or dark, whether he is tall or short, whether he is fat or thin, whether he is bald or having hairs on his head. PW1 frankly admitted that he cannot say any of these features. If the case of first respondent is true and he was made to believe by the revision petitioner that if first respondent pays Rs.1,00,000/- he will arrange a job for his son and after paying Rs.1,00,000/- revision petitioner failed to arrange the job and therefore first respondent was compelled to claim back the amount and then revision petitioner issued a cheque, PW1 would have definitely disclosed the features of the revision petitioner. The very fact that first respondent cannot disclose whether revision petitioner is tall or dwarf, thin or fat, fair or dark CRRP 2773/07 5 would establish that first respondent had not even seen the revision petitioner once. Otherwise, if revision petitioner by inducing first respondent to believe that, if Rs.1,00,000/- is paid he will arrange a job for his son and failed to arrange the job and issued a dishonoured cheque, the figure of the first respondent will never fade from his memory and it would have been possible for PW1 to disclose at least one identifying features. Therefore, that fact itself establish that first respondent had no acquaintance with revision petitioner as claimed by him. If so, it is not possible to believe that he paid Rs.1,00,000/- to the revision petitioner. 2. Cross examination of PW1 establish that he did not enquire about the capability of revision petitioner to arrange a job for his son. Though it is not disclosed in Ext.P4 notice or in the complaint, evidence of PW1 is that revision petitioner promised to arrange the job in South Malabar Gramin Bank. Revision petitioner was admittedly employed in Reserve Bank at Thiruvananthapuram during that period. He is a native of Kasaragod district and is settled in Kozhikode. It is not known on what basis first respondent believed CRRP 2773/07 6 that revision petitioner, who is only an employee of the Reserve Bank at Thiruvananthapuram could arrange a job as a peon in South Malabar Gramin Bank. Therefore, on the very face of it, case of first respondent cannot be believed. Unfortunately, learned Magistrate and learned Sessions Judge did not properly appreciate the evidence and based on the presumption under Section 139 of Negotiable Instruments Act for the reason that Ext.P1 cheque was issued in the account maintained by revision petitioner and contains his signature convicted him. 2. Though learned counsel appearing for first respondent vehemently argued that as no reply was sent to Ext.P4 notice, case of revision petitioner cannot be believed and there is no evidence to rebut the presumption under Section 139 of Negotiable Instruments Act it is not the law that the presumption under Section 139 is irrebutable. It is only a rebuttable presumption. Presumption could be rebutted by cross examining the complainant or by adducing the evidence to establish that the cheque could not have been issued towards discharge of a debt or liability. When the only case of the first respondent is that CRRP 2773/07 7 Ext.P1 cheque was issued towards repayment of Rs.1,00,000/- received by revision petitioner, for arranging a job for his son and by cross examining PW1 it is established that first respondent could not have paid Rs.1,00,000/- as claimed by him, the presumption provided under Section 138 of Negotiable Instruments Act is successfully rebutted by the revision petitioner. In such a case unless first respondent establishes that Rs.One Lakh was paid earlier and Ext.P1 cheque was issued towards repayment of the amount, revision petitioner cannot be convicted for the offence under Section 138 of Negotiable Instruments Act. On a proper appreciation of evidence of PW1 and DW1 it can only be found that first respondent did not pay Rs.1,00,000/- to the revision petitioner for arranging employment for his son. If that be so, Ext.P1 cheque could not have been issued towards repayment of that debt or liability. In such circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is not sustainable. Revision is allowed. Conviction of revision petitioner for the offence under Section 138 of CRRP 2773/07 8 Negotiable Instruments Act in C.C.58/2003 as confirmed in Crl.A.826/2005 is set aside. Revision petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.