IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 905 of 2008() ----------------------------- CRA.260/2007 of ADDL. DISTRICT &SESSIONS COURT (ADHOC-II), THODUPUZHA ST.1596/2005 of JUDL. FIRST CLASS MAGISTRATE COURT-II, PEERMADE .................... REVN. PETITIONER: 1ST RESPONDENT/COMPLAINANT ----------------------------------------------- M.V.JOSEPH, S/O.VARKEY NJONDIMAKKAL VEETIL, PALLOORKKAVU P.O. PERUVANTHANAM VILLAGE, PEERMADE TALUK. BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT(S): APPELLANT/ACCUSED -------------------------------- 1. MUHAMMAD ISMAIL, PUTHUPPARAMBIL VEETIL, KANAM MALA KARA, PALLOORKKAVU P.O. PERUVANTHANAM VILLAGE, PEERMADE TALUK. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.905 OF 2008 ------------------------------------------ Dated this the 20th day of October, 2008 O R D E R Petitioner is the complainant in S.T. 1596 of 2005 on the file of Judicial First Class Magistrate-II, Peermade. First respondent is the accused. Complaint was filed alleging that first respondent borrowed Rs.75,000/- and towards its repayment, issued Ext.P1 cheque drawn in his account maintained in Peruvanthanam branch of State Bank of Travancore dated 28.12.2004 and when it was presented for encashment through Mundakayam branch of State Bank of Travancore, where first respondent has an account, it was dishonoured under Ext.P2 for the reason that the funds are insufficient. Petitioner sent Ext.P4 notice demanding the amount covered by dishonoured cheque which was received under Ext.P6 acknowledge card. He did not pay the amount and thereby committed offence under section 138 of Negotiable Instruments Act. First respondent pleaded not guilty. Petitioner was examined as PW1 and Exts.P1 to P6 were marked on his CRRP 905/08 2 side. First respondent was not examined and Exts.D1 to D3 were marked on his side. Learned Magistrate on the evidence found him guilty and convicted and sentenced him to simple imprisonment for three months in addition to a compensation of Rs.75,000/- and in default simple imprisonment for three months under section 357(3) of Code of Criminal Procedure. First respondent challenged the conviction and sentence before Sessions Court, Thodupuzha in Crl.Appeal 260 of 2007 and learned Sessions Judge on reappreciation of evidence set aside the conviction and acquitted him under section 386(b)(1) of Cr.P.C and dismissed the appeal. Complainant has filed this revision challenging the acquittal. 2. Case of the revision petitioner is that the learned Sessions Judge did not properly appreciate the evidence and there is no reason to interfere with the finding of the learned Magistrate. It was contended that Ext.D3 agreement was not proved and therefore it should not have been relied on. It was also contended that as Ext.P1 cheque was issued towards discharge of an existing liability and it was dishonoured for want of sufficient funds, first respondent committed the offence under section 138 of Negotiable Instruments Act and Sessions Judge has not appreciated the evidence in the proper perspective. It is CRRP 905/08 3 the case of the petitioner in the complaint itself that first respondent borrowed Rs.75,000/- on 30.8.2004 agreeing to repay the same before 31.12.2004 and later towards repayment of that amount Ext.P1 cheque dated 28.12.2004 was issued. When examined as PW1, petitioner admitted that he had purchased the property belonging to first respondent on 23.11.2002 as per a registered sale deed. It is also admitted by PW1 that he purchased the property believing the representation that there was no encumbrance on the property and later in July 2004 petitioner realised that there was encumbrance in respect of the property. It is also admitted by the petitioner that he instituted O.S.91 of 2005 before Munsiff Court, Kottayam in respect of that transaction against first respondent and his wife. As rightly found by learned Sessions Judge, the case of the transaction and the payment set up by the petitioner is to be appreciated in this background. When the case of the petitioner is that he purchased the property of the first respondent in November 2002, believing that there was no encumbrance and in July 2004 petitioner realised that there was in fact an encumbrance and on that basis petitioner instituted a civil suit against first respondent and his wife, it cannot be believed that when the relationship was strained and after CRRP 905/08 4 coming to know that first respondent suppressed existence of the encumbrance and made petitioner to purchase the property, he would grant a loan in August 2004 to first respondent much less by getting a promise that the amount will be paid before December 2004. It is in such circumstances learned Sessions Judge believed the defence case that Ext.P1 cheque was not issued towards repayment of the amount as claimed by the petitioner. Therefore even if Ext.D3 agreement was not proved, evidence establish that there could not have a loan transaction as claimed by the petitioner. In such circumstances learned Sessions Judge was justified in holding that petitioner did not establish that Ext.P1 cheque was issued towards payment of a legally recoverable debt and acquitted him. I do not find any reason to interfere with the order of acquittal, as it is in accordance with the evidence and the facts and circumstances of the case. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-