IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Crl.Rev.Pet.No. 1162 of 2003(C) --------------------------- CRA.207/1997 of ADDL. SESSIONS COURT (FAST TRACK COURT NO-II), PALAKKAD ST.67/1993 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD ................ REVISION PETITIONER / APPELLANT / ACCUSED : ------------------------------------------------------------------------- ACHUTHAN NAIR, PRESEEDA FILMS, PADINJARE PUTHEN VEEDU, THEKKETHARA, PAZHAYANNUR, THRISSUR DISTRICT. BY ADVS. SRI. VARGHESE C. KURIAKOSE SRI. JACOB SEBASTIAN RESPONDENTS / RESPONDENTS / COMPLAINANT AND STATE : ------------------------------------------------------------------------------------------- 1. SIVALOKANATHAN, S/O. VELAPPAN, MELEVEEDU, KANNANUR, ALATHUR, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn N.K. BALAKRISHNAN, J. ---------------------------- Crl.R.P. No. 1162 of 2003 --------------------------------- Dated this the 5th day of August, 2011 ORDER Accused is the revision petitioner. He was found guilty and convicted by Judicial First Class Magistrate-I, Palakkad for the offence punishable u/s 138 of the Negotiable Instruments Act. The accused was sentenced to undergo simple imprisonment for 5 months. His appeal was dismissed by the learned Additional Session Judge. The case of the complainant is that the accused borrowed a sum of Rs.30,000/- on 08.02.1992 and in discharge of that debt/liability a post-dated cheque; dated 25.11.92, was issued by the accused which on presentment was returned with an endorsement 'account closed'. Statutory notice was sent to the accused. The amount covered by Ext.P1 was not paid. Hence the complaint was filed. 2. The complainant got himself examined as PW1 and two other witnesses were examined as PW2 and PW3 and Ext.P1 to P5 were marked. The accused got himself examined as DW1. Exts.D1 and D2 were also marked. Crl.R.P. No. 1162 of 2003 2 3. The learned Magistrate found that Ext.P1 was the cheque issued by the accused in discharge of a legally enforceable debt/liability, statutory formalities were complied with by the complainant and thus found that accused is guilty of the offence. He was therefore convicted and sentenced as mentioned above. In the appeal, the learned Additional Session Judge after analysing the evidence, concurred with the finding entered by the Trial Court and confirmed the conviction and sentence. 4. The learned counsel appearing for the accused would submit that there was non-consideration of the evidence adduced by the accused. The very case of the accused was that there was a partnership between himself and one Sasi Kumar with regard to the film distribution and during the course of that transaction and for the proper conduct of the business signed blank cheque leaves were left in the office of the partnership firm but later the accused and Sasi Kumar fell apart. Sasi Kumar mentioned above, who is a friend/close associate of the complainant took advantage of that position and the signed Crl.R.P. No. 1162 of 2003 3 blank cheque leaves which were in the possession of Sasi Kumar were handed-over to the complainant and this case was foisted against him. Learned counsel for the accused further submits that with regard to the execution of Ext.P1, there is only the oral testimony of PW1. The case advanced by the accused was that PW1 put only his signature and the entire remaining writings were not that of the accused. The learned counsel submits that, according to PW1, the cheque was written-up/filled-up by the accused himself and was signed in the presence of PW1. But a perusal of Ext.P1, itself would prove it to be otherwise. The learned counsel would submit that even by a naked eye it can be seen that the cheque was signed by the accused using different pen. In order to prove that the other writings were not that of the accused, he took the trouble of getting Ext.P1 sent to the Forensic Science Laboratroy to get it compared and report was obtained from the Director of the FSL. The learned counsel further submits that, on comparison of these standard writings, differences in certain writing characteristics could be noticed. Crl.R.P. No. 1162 of 2003 4 According to the accused this report should have been allowed to be marked without examining the expert in view of Section 292 Cr.P.C. If for any reason there was anything to be clarified or brought it through the examination of the expert, the expert could have been summoned to give evidence in the matter. But that question, according to the learned counsel, would arise only if the court finds it fit to summon any officer in the said matter as required u/s 292(2) Cr.P.C. According to the learned counsel, though there is a concurrent finding regarding the execution of Ext.P1, on going through the judgment, it can be seen that, there was no proper appreciation of evidence. In other words, according to the learned counsel, the appreciation of evidence is wholly erroneous so that this court can interfere with the findings of facts. 5. The learned counsel for the revision petitioner would submit that despite the fact that there is a concurrent finding that Ext.P1 was issued by the accused to discharge the legally enforceable debt or liability, this Court would be perfectly Crl.R.P. No. 1162 of 2003 5 justified in interfering with that finding. The circumstances do persuade the court to hold that the possibility of executing a cheque in favour of the complainant was practically nil, the learned counsel for the accused submits. In support of that submission, the learned counsel for the accused has relied upon Ext.D2 Karar also. As stated earlier, the accused had taken steps to get the document compared by a handwriting expert which would show the bonafides of the contention raised by the accused, the learned counsel submits. 6. The learned counsel has also relied upon the decisions in (2010 (3) KLT 379) Joseph M.J. v. Gladis Sasi and (2011 (3) KHC 22) Santhi C. v. Mary Sherly and Another, in support of his submission that Ext.P1 cannot be treated as a cheque at all and it was only a cheque leaf and unless and until, the complainant proves to the satisfaction of the court that the cheque was actually executed by the accused and handed over the same to the complainant, no presumption under Section 139 can be drawn. Simply because the disputed document contains Crl.R.P. No. 1162 of 2003 6 the signature of the accused it cannot be presumed that it was executed by the accused. No other evidence was adduced by the complainant to prove the due execution, which is the pre-requirement for sustaining his case. 7. The learned counsel has also relied upon the decisions of apex court reported in 2007 (5) SCC 264 Kamala v. Vidyadharan M.J. and another, in support of his submission that the accused can discharge the burden on preponderance of probabilities. It is well settled that when two views are possible, the view, which is favourable to the accused has to be preferred to. The courts below ignored the report given by the expert that Ext.P1 contains only the signature of the accused and other writings therein are not that of the accused. There should be other evidence to prove the due execution of the cheque. However, I find that an opportunity can be given to the complainant to adduce further evidence in the matter. Crl.R.P. No. 1162 of 2003 7 In the result, this Crl.R.P. is allowed in part. The conviction and sentence passed against the revision petitioner/accused are set aside and the case is remanded for fresh disposal to JFCM-I, Palakkad. The learned Magistrate will afford an opportunity to both sides to adduce further evidence. The learned Magistrate will try to dispose of the matter as expeditiously as possible. The parties will appear before JFCM-I, Palakkad on 26.08.2011. N.K. BALAKRISHNAN, JUDGE. ln