IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 2620 of 2008() ------------------------------ CRA.302/2004 of II ADDL.SESSIONS COURT, KOLLAM CC.406/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PUNALUR .................... REVN. PETITIONER:APPELLANT/ACCUSED --------------------- P.S.SIVADASAN PILLAI S/O.SIVAN PILLAI, PARANKIMAM VILLAYIL, CHENAKODU PO., MANACALA VIA., ADOOR. BY ADV. SRI.V.B.UNNIRAJ RESPONDENTS:RESPONDENTS/COMPLAINANT & STATE ------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. MAJESH.M.R., S/O.P.N.RADHAKRISHNAN NAIR, MANJU BHAVAN, NEAR ESI HOSPITAL, PUNALOOR. PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R1 SRI.V.V.RAJA FOR R2 SRI.M.T.SURESHKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO.2620 OF 2008 -------------------------------------------------- Dated this the 9th day of January, 2009 O R D E R Revision petitioner is the accused and second respondent the complainant in C.C.406 of 2001 on the file of Judicial First Class Magistrate-III, Punalur. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Conviction and sentence was confirmed by Additional Sessions Judge, Kollam in Crl. Appeal 302 of 2004. Revision is filed challenging the conviction and the sentence. 2. Learned counsel appearing for revision petitioner and the second respondent were heard. 3. On hearing the learned counsel appearing for revision petitioner and second respondent, it is absolutely clear that neither the complainant nor the revision petitioner had adduced sufficient or proper evidence to resolve the dispute involved in the case. It is the specific case of the second respondent that for arranging a seat for second respondent in Indian Engineering College, Nagarcoil, through Annamma Joseph, Municipal Councilor of Adoor, late Radhakrishnan Nair, his father, contacted the revision petitioner and from Annamma CRRP 2620/2008 2 Joseph revision petitioner received Rs.1,50,000/-, which was to be entrusted to the college as fees and after second respondent joined the college, he was informed that the cheque given by the revision petitioner towards the fees of the second respondent was dishonoured and second respondent will not be allowed to appear for the examination. When father of the second respondent approached revision petitioner, revision petitioner paid Rs.50,000/- to the college on 3.1.2000 and for the balance of Rs.1,00,000/- he issued a cheque dated 5.10.2000 drawn in his account in Union Bank of India, Adoor branch and the cheque when presented for encashment was dishonoured and in spite of notice revision petitioner did not pay the amount and he thereby committed the offence under section 138 of Negotiable Instruments Act. For the second respondent, his mother was examined as PW1. PW1 did not narrate the transaction and only stated that towards the payment of the amount due, Ext.P1 cheque was issued and it was dishonoured. PW1 was cross-examined. But, even at that time no suggestion was made to PW1 explaining how Ext.P1 cheque drawn in the account of the revision petitioner came to be in the possession of the second respondent. Even when questioned under section 313 of Code of Criminal Procedure, revision petitioner did not say anything except denying the transaction and even acquaintance with the second respondent. In the appeal CRRP 2620/2008 3 memorandum filed before the Sessions Court as well as in the revision memorandum, revision petitioner developed the case. Ground No.6 of the revision petition reveals that Municipal Councilor, Annamma Abraham (evidently it is a mistake for Annamma Joseph) approached revision petitioner with a request to arrange admission for the second respondent in the management quota of the Engineering College at Nagarcoil with which revision petitioner had association and after making necessary enquiry, revision petitioner informed Annamma Joseph that Rs.1,00,000/- is required for admission in the management quota as capitation fee and thereafter Annamma Joseph issued a cheque for the said amount, drawn in her account and at that time, as claimed by Annamma Joseph, the revision petitioner issued Ext.P1 cheque to her as security. It is also contended that revision petitioner arranged the admission after paying Rs.1,00,000/- in cash to the college and he failed to claim back the cheque from Annamma Joseph and second respondent had colluded with Annamma Joseph and put the date in Ext.P1 cheque to extract money. Though no evidence was adduced by the second respondent as to the original transaction and the liability, the case put forth by the revision petitioner in the revision memorandum itself shows that revision petitioner had received Rs.1,00,000/- for making payment of that amount to the Engineering College on behalf of the second CRRP 2620/2008 4 respondent. Though the case is that the amount was received from Annamma Joseph, it is the case of the revision petitioner that the amount so received was deposited before the college by him. On the other hand, it is the case of the second respondent that the amount, which should have been deposited by the revision petitioner was not deposited and instead a cheque was issued by him to the college, which was dishonoured and thereafter a part payment was made and for the balance, Ext.P1 cheque was issued. In addition, there is a specific allegation in para 3 of the complaint that evidencing the transaction at the time of issuance of Ext.P1 cheque, an agreement was executed on 11.1.2000. That agreement was also not seen produced. In such circumstances, interest of justice warrants that an opportunity is to be granted to both the complainant and the accused to adduce further evidence. In such circumstances conviction of the revision petitioner by the Magistrate, as confirmed by the Sessions Judge, is to be set aside and the case is to be remanded for fresh disposal in accordance with law. Revision is allowed. The judgment of the Judicial First Class Magistrate-III, Punalur in C.C.406 of 2001, as confirmed in Crl. Appeal 302 of 2004, is set aside. C.C.406 of 2001 is remanded to Judicial First Class Magistrate-III, Punalur for fresh disposal in accordance with law. Second respondent/complainant as well as the CRRP 2620/2008 5 revision petitioner is permitted to adduce further evidence. From the nature of the contentions raised by the complainant and the accused, now the dispute narrows down to the fact whether Rs.1,00,000/- payable by the second respondent to the Engineering College was paid by the second respondent as contended in the complaint or by the revision petitioner as contended in the revision petition as well as appeal memorandum and whether Ext.P1 cheque was issued towards the payment of Rs.1,00,000/- to the second respondent being the amount to be paid by the revision petitioner. The Judicial First Class Magistrate-III, Punalur to dispose the complaint in accordance with law. It is made clear that the learned Magistrate has to decide all the points afresh. Parties are directed to appear before the Magistrate on 11.2.2009. M. SASIDHARAN NAMBIAR, JUDGE okb