IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 2757 of 2008() --------------------------------------------- CRA.567/2007 of SESSIONS COURT, ERNAKULAM CC.644/2007 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED -------------------------------- MAHESWARI, PROPRIETRIX, MEENU SHARE CONSULTANTS, 16/1666, FRANCIS ROAD, OPP. P.V.S. HOSPITAL, CALICUT 673 003. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): RESPONDENTS / COMPLAINANT & STATE -------------------------- 1. M/S. ERTEX SECURITIES LIMITED, THOTTATHIL TOWERS, 2ND FLOOR, MARKET ROAD, ERNAKULAM , COCHIN 682 014. 2. STATE OF KERALA REP.BY PUBLI PROSECUTOR, HIGH COURT OF KERALA PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2757 OF 2008 =========================== Dated this the 21st day of November,2008 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.644/2007 on the file of Judicial First Class Magistrate Court-I, Kochi. First respondent is Company and is represented by its Senior Executive who was examined as PW1. Case of the first respondent in the complaint is that revision petitioner was doing share business with Calicut Branch of the first respondent through National Stock Exchange under trading account No.528 and towards part payment of the amount due, Ext.P2 cheque dated 8.6.2001 drawn in her account maintained in Kozhikode Branch of Karnataka Bank was issued. When the cheque was presented through the account of the first respondent in HDFC Bank, it was dishonoured under Ext.P3 for want of sufficient funds and intimated to the first respondent under Ext.P4. First CRRP 2757/2008 2 respondent sent Ext.P5 notice demanding the amount covered by the dishonoured cheque. It was served on the petitioner under Ext.P6. She failed to pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner originally appeared and pleaded not guilty. After closing evidence on the side of first respondent and the case was posted for questioning under section 313 of Code of Criminal Procedure, petitioner absconded in December, 2003 after getting the case adjourned on several occasions by filing applications. Ultimately, after completing steps under section 82 and 83 of the Code of Criminal Procedure, case was included in the long pending case register in February, 2005. Petitioner was arrested and produced on 28.6.2007. She was granted bail and was questioned under section 313 of Code of Criminal Procedure. She did not adduce any evidence. Learned Magistrate on the evidence convicted and sentenced petitioner for the offence under section 138 of CRRP 2757/2008 3 Negotiable Instruments Act. Though it was challenged before Sessions Court, Ernakulam in Crl.A.567/2007, learned Sessions Judge dismissed the appeal confirming the conviction and sentence. It is challenged in this revision. 2. Though notice was served on first respondent, first respondent did not appear. The records were called for and perused. 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel argued that there is no evidence to prove that Ext.P2 cheque was issued towards discharge of any legally recoverable debt. It was argued that inspite of the case in the complaint itself that Ext.P2 cheque was issued towards part payment of the amount due under trading account No.528, no evidence was adduced to prove that any amount much less the amount covered by the dishonoured cheque was due under the said trading account. Learned counsel also argued that evidence of PW1 shows that case of first respondent CRRP 2757/2008 4 was that inclusive of the dishonoured cheque Rs.9,00,000/- was due and Ext.P2 cheque was issued towards part payment of that amount, but no evidence was adduced to prove existence of such liability. It was also argued that when revision petitioner contended that Ext.P2 cheque was issued as a blank cheque and that too as security, evidence of PW1 does not establish that the cheque was executed by the revision petitioner as PW1 has no case that it was written or signed in his presence and therefore presumption provided under section 139 of Negotiable Instruments Act cannot be drawn in favour of first respondent. It was also argued that when there are records to establish the actual amount due by the revision petitioner to the first respondent, without producing the records, courts below should not have found that Ext.P2 cheque was issued towards discharge of a legally recoverable debt. Learned counsel also pointed out that C.C.1971/2007 and C.C.964/2007 are pending before the Judicial First Class Magistrate, CRRP 2757/2008 5 Ernakulam in respect of the other cheques allegedly issued by the revision petitioner and the said cases are hotly contested and in such circumstance, an opportunity is to be granted to adduce evidence and therefore the conviction and sentence are to be set aside and the case is to be remanded to the trial court. 5. Though it was the specific case of the first respondent in the complaint itself that Ext.P2 cheque was issued towards part payment of the amount due from the revision petitioner to the first respondent under trading account No.528, no record was produced before the learned Magistrate either to prove that trading account No.528 relates to the revision petitioner or that as on the date of Ext.P2 cheque, the amount covered by the said cheque was due. The evidence of PW1 shows that records are available with the first respondent Company and still they were not produced. When PW1 was cross examined as to whether he had seen the revision petitioner signing the cheque, PW1 deposed CRRP 2757/2008 6 that he did not witness the signing of the cheque but the cheque was entrusted by the revision petitioner. In the light of this evidence when issuance of Ext.P1 cheque was not admitted and execution was not proved, presumption under section 139 of Negotiable Instruments Act cannot be drawn. If so there should be evidence to prove that it was issued in discharge of a debt or liability. When such debt or liability is disputed, it is to be proved. When there are records to prove the debt or liability, it is to be produced. In the nature of the case when proper evidence was not adduced and partly it is due to the failure of revision petitioner also an opportunity is to be granted to the first respondent to produce the records and establish that on the date of issuance of Ext.P2 cheque the amount covered by the cheque was due. It is clear from the records that PW1 was cross examined in 2003 and the revision petitioner did not appear, non-bailable warrant was issued at the stage of questioning petitioner under section 313 CRRP 2757/2008 7 of Code of Criminal Procedure and after her arrest in 2007, she was questioned and the case was disposed. In such circumstance, interest of justice warrants that an opportunity is to be given to the first respondent as well as the revision petitioner to adduce further evidence. Criminal Revision Petition is allowed. Conviction and sentence passed by the Judicial First Class Magistrate in C.C.644/2007 as confirmed by the Sessions Judge in Crl.A.567/2007 is set aside. C.C.644/2007 is remanded to Judicial First Class Magistrate, Kochi for fresh disposal in accordance with law. First respondent is entitled to adduce evidence to establish that under trading account No.528, the amount covered by Ext.P1 dishonoured cheque was due on the date of issuance of the cheque and Ext.P2 cheque was issued towards payment of that amount. Revision petitioner is entitled to adduce evidence after closing the evidence of the first respondent. Send back the records to the Judicial First Class Magistrate CRRP 2757/2008 8 Court-I, Kochi. Magistrate is directed to issue notice to first respondent for appearance, as first respondent did not appear in the revision. Revision petitioner is directed to appear before the Magistrate on 29.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006