IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 3796 of 2008(D) ------------------------------------ AGAINST JUDGMENT DTD 9.9.2008 IN CRA.145/2004 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM ST.4936/2003 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------ S.JAYARAJ, T.C.16/828(1), LAKSHMI BHAVAN, THYCAUD P.O., THIRUVANANTHAPURAM. BY ADV. MR.S.M.PREM MS.K.P.SANTHI MR.P.K.NIJOY RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. 2. KRISHNANKUTTY, VIJAYALAYAM, ATTUKAL, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR MR. JAYAKRISHNAN MR.S.BIJU (KIZHAKKANELA) FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.3796 OF 2008 ---------------------------------------- Dated this the 8th day of June, 2009 ORDER This revision is in challenge of the judgment of learned Additional Sessions Judge (Fast Track No.III), Thiruvananthapuram confirming conviction of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) but modifying the substantive sentence and converting compensation awarded by the trial court to fine. 2. According to respondent No.2, petitioner borrowed Rs.2½ lakhs from him and issued Ext.P1, cheque dated 19.3.2003 for the discharge of that liability. That cheque was dishonoured for insufficiency of funds about which respondent No.2 got intimation on 18.6.2003. He issued notice to the petitioner through lawyer on 28.6.2003 intimating dishonour and demanding payment of the amount. Petitioner did not pay the amount and hence the complaint. Respondent No.2 gave evidence as PW1 and proved Exts.P1 to P4. Ext.P1 is the cheque Crl.R.P.No.3796/08 2 in question. Its dishonour for reasons stated by respondent No.2 is proved by Ext.P2. Issue and service of notice are not disputed and are proved by Exts.P3 and P4. When questioned under Section 313 of Code of Criminal Procedure (for short, “the Code”), petitioner claimed that he had no transaction with respondent No.2 and instead, had given the cheque to one Anithakumari. Petitioner did not adduce any evidence in that line. Learned magistrate was not inclined to accept the explanation offered by the petitioner, found in favour of the due execution of the cheque and convicted the petitioner. Petitioner was sentenced to undergo Simple Imprisonment for three months and directed to pay Rs.2 ½ lakhs as compensation. The petitioner preferred an appeal. In the course of appeal, petitioner filed C.M.P.No.1959/2008 under Section 391 of the Code requesting that he may be permitted to adduce evidence and produced notice dated 17.4.2003 said to have been issued by Advocate A. Balakrishnan to the petitioner on behalf of Smt. Anithakumari. The attempt of the petitioner was to prove that the cheque in question had actually been given by him to the said Anithakumari Crl.R.P.No.3796/08 3 concerning which advocate A. Balakrishnan issued notice to him. 3. Learned additional sessions Judge was not inclined to permit evidence to be let in at that stage of the appeal and dismissed C.M.P.1959/08 as per order dated 22.8.2008. Appeal was disposed of conviction of the petitioner was confirmed but sentence was modified. Petitioner challenges that judgment in this revision. 4. Learned counsel for petitioner contends that appellate court ought to have given petitioner an opportunity to adduce evidence by remanding the case if at all the document produced along with C.M.P.No.1959/08 could not have been received in evidence in the appeal. Learned counsel produced for my perusal a copy of the notice produced along C.M.P.No.1959/08. Learned counsel for respondent No.2 in response contended that the notice itself is the result of an afterthought and that case set up by the petitioner is inconsistent. When questioned under Section 313 of the Code petitioner claimed that he has already paid off Anithakumari. But what is stated in C.M.P.No.1959/08 is that he is still paying Crl.R.P.No.3796/08 4 the amount due to the said Anithakumari. Learned counsel pointed out that in response to the notice of dishonour admittedly served on the petitioner he did not even send a reply. It is therefore contended that there is no reason to interfere with the judgment of the appellate court. 5. No doubt that petitioner did not reply to the notice served on him. But the mere failure to reply to the statutory notice by itself cannot prove the guilt of the petitioner. It is also true that on the question whether petitioner has paid the amount allegedly due to Anithakumari, he has no consistent version but, for that reason alone, the request for receiving evidence could not have been rejected if otherwise, there was some relevance for the evidence sought to be let in. I have to bear in mind that in a criminal case the accused can set up inconsistent or contradictory defences. Moreover, the question whether petitioner has paid the entire amount due to Anithakumari or not is not a matter relevant for consideration in this revision. 6. I have gone through the records. Ext.P1 cheque is dated 19.3.2003. It is seen from Ext.P1 that it was once Crl.R.P.No.3796/08 5 presented and dishonoured on 20.3.2003 and then again presented and dishonoured on 17.6.2003. The second dishonour was intimated to respondent No.2 on 18.6.2003. Based on that, statutory notice was issued to the petitioner. Ext.P3 is the copy of that notice dated 28.6.2003. There is no reference in Ext.P3 or the complaint or in the evidence of PW1 about the dishonour of the cheque on 20.3.2003. It is seen from the notice dated 17.4.2003 sent by advocate A. Balakrishnan on behalf of Smt. Anithakumari (produced along with C.M.P.No.1959/2008 in the appeal) that it is in respect of the same cheque (Ext.P1). In that notice it is stated that petitioner issued the cheque (Ext.P1) to the said Anithakumari and it was dishonoured for insufficiency of funds. Learned counsel for petitioner states that the said notice was issued consequent to dishonour of Ext.P1, cheque on 20.3.2003. Notice dated 17.4.2003 produced along with C.M.P.No.1959/08 in the appeal cannot be said to be wholly irrelevant so far as the contention of the petitioner is concerned. Petitioner has a defence right from the beginning that he has no transaction with respondent No.2 and that he had handed over the cheque Crl.R.P.No.3796/08 6 to Smt. Anithakumari. When Adv. A. Balakrishnan issues a notice to the Petitioner on behalf of Smt. Anithakumari it must be presumed until proved otherwise that it was issued as per instruction received from Smt. Anithakumari. That means, as things stand now, that Smt. Anithakumari had presented the same cheque (Ext.P1) for encashment before respondent No.2 did so, claiming that petitioner had issued that cheque for the discharge of a debt/liability due to her and that cheque was dishonoured. The question whether it was true that Smt. Anithakumari was really in possession of the cheque (Ext.P1) and presented it for encashment, whether petitioner gave the cheque to her are all matters for for evidence. 7. In the nature of evidence sought to be produced in appeal and considering the contention advanced by the petitioner, I am persuaded to think, notwithstanding that petitioner had not replied to the notice served on him or produced his evidence in the trial court that he must be given an opportunity to adduce evidence. Learned counsel for respondent No.2 stated that the cheque was presented on 20.3.2003 on behalf of respondent No.2 though, that fact was Crl.R.P.No.3796/08 7 not specifically pleaded in the complaint or stated in the evidence of respondent No.2 as PW1. Certainly, respondent No.2 also should get opportunity to adduce appropriate evidence in that regard. It is open to respondent No.2 to show how the notice dated 17.4.2003 issued on behalf of Adv. A. Balakrishnan does not affect his case or bind him. In the above circumstance, I am inclined to think that dismissal of C.M.P.No. 1959/08 and the consequent disposal of the appeal confirming conviction are liable to be set aside and the matter is remitted to the trial court for fresh disposal after giving both sides opportunity to adduce evidence. Interest of justice, notwithstanding some laches and negligence on the part of the petitioner in arranging his defence demands a remand of the case so that, both sides can adduce further evidence on the disputed issue. Resultantly, this revision is allowed. Judgments of the courts below and the order on C.M.P.No.1959/08 are set aside and the case is remitted to the court of learned Judicial First Class Magistrate-IV, Thiruvananthapuram for fresh disposal after giving both sides opportunity to adduce further evidence. Crl.R.P.No.3796/08 8 Learned Additional Sessions Judge (Fast Track No.III), Thiruvananthapuram shall transmit C.M.P.No.1959/08 and the documents produced along with, to the trail court for consideration. Learned magistrate is directed to expedite the trial and disposal of the case. Parties shall appear in the trial court on 06.07.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.3796/08 9