IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 Crl.Rev.Pet.No. 3884 of 2007() ------------------------------ CRA.431/2006 of SESSIONS COURT, KOTTAYAM ST.1394/2005 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER: 2ND RESPONDENT/COMPLAINANT ------------------------------------------------------------- VINOD P.ULAHANNAN, PUSPA NIVAS, POOTHAKUZHY P.O. PAMPADY. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENTS: APPELLANT/ACCUSED AND STATE ------------------------------------------------------- 1. P.K.PRASAD, PARAKKAL HOUSE, POOTHAKUZHY P.O., PAMPADY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR R1 BY ADV.SRI.V.K.SUNIL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 3884/2007 : 2 : ORDER ON CRL.M.A.NO. 11424/2007 IN CRL.R.P. NO. 3884/2007 DISMISSED 11.06.2008 sd/- V. RAMKUMAR, JUDGE. /True Copy/ P.A to Judge. V. RAMKUMAR , J. ========================== Crl.R.P. No. 3884 of 2007 ========================== Dated this the 11th day of June, 2008. ORDER Heard both sides. 2. The revision petitioner is the complainant in S.T. No. 1394 of 2005 on the file of the Judicial First Class Magistrate-I, Kottayam, which was a prosecution under Section 138 of the Negotiable Instruments Act. The 1st respondent herein is the accused in the said case. 3. The case of the revision petitioner/complainant is that an amount of Rs.2 lakhs was advanced to the accused who issued Ext.P1 cheque dated 04.08.2004 and when the cheque was presented before the drawee bank for payment, it was dishonoured for want of sufficient funds in the account maintained by the accused. The complainant alleged that even after the statutory notice, the accused did not send a reply or pay the amount. 4. The 1st respondent/accused did not send a reply to the statutory notice. At the stage of evidence, the stand taken by him was that he was a subscriber to the chitty transaction CRL.R.P. NO. 3884/2007 : 2: conducted by the father of the complainant and the cheque in question was given as a security to the said transaction. In support of the above stand, he examined the father of the complainant as DW1 who did not support the version of the accused. The accused examined himself as DW2. Ext. D2 was marked on his side. Ext.D1 is nothing but certain remittances made on certain dates. It does not show whether it was remitted towards the chitty transaction or the person who remitted the amounts or whether those remittances were towards the transaction set up by the accused at the stage of evidence. 5. The learned Magistrate after a careful evaluation of the oral and documentary evidence including the defence evidence, found the 1st respondent guilty of the offence and sentenced him to undergo simple imprisonment for six months and to pay the cheque amount of Rs.2 lakhs as compensation. On appeal preferred by the 1st respondent/accused as Crl. Appeal No. 431 of 2006 before the Sessions Court, Kottayam, the learned Sessions Judge as per judgment dated 27.07.2007 set aside the judgment of the trial court and remanded the case to the trial court giving another opportunity to the accused to substantiate his CRL.R.P. NO. 3884/2007 : 3: contentions. When it was not admitted by DW1, the father of the complainant that Ext.D1 was pertaining to a chitty conducted by him or that it related to the transaction set up by the accused, the lower appellate court would say that Ext.D1 was not put to DW1 and no question was asked to DW1 to ascertain whether the accused's wife was a subscriber to the chitty transaction. Even if the wife of the accused were to be examined as a witness, she will only tow the line of her husband. But when there was not even any prima facie material to indicate that the transaction forming the subject matter of Ext.P1 cheque was the one set up by DW2, the accused, there was absolutely no necessity for a remand on the ground that the case of the accused was not properly conducted. I, therefore, set aside the remand order passed by the lower appellate court and direct the lower appellate court itself to dispose of the appeal on merits without a remand after evaluating the evidence already on record. This revision is allowed as above. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 3884/2007 : 4: