IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.Rev.Pet.No. 3132 of 2006() ------------------------------ CRA.380/2005 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE ST.503/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS, KOZHIKODE. REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- ABDUL MANAF, S/O.MOHAMMED, KEEZHITHOTHE HOUSE, FAROOK COLLEGE P.O., KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS/ RESPONDENTS/ COMPLAINANT AND STATE ------------------------------------------------------------------ 1. PARASMAL LUNAVAT, S/O.PADAMCHAND JAIN, PROPRIETOR, DOLPHIN FINANCIAL SERVICES, EKP COMPLEX, OPPOSITE PAICO, KALLAI ROAD, CALICUT, REP. BY PA HOLDER, K.GIRISHAN, S/O.BHASKARAN, GREENS, NEAR WATER TANK, P.O.PUTHIYARA, CALICUT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. R.P. NO. 3132 OF 2006 = = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF FEBRUARY, 2011. O R D E R The first respondent herein prosecuted the revision petitioner before the Judicial Magistrate of the First Class (Marad cases), Kozhikode, in S.T. 503 of 2004 alleging offence under Section 138 of the Negotiable Instruments Act, with an allegation that the revision petitioner obtained finance from Vardhaman Finance Corporation, Chennai for purchasing a two wheeler and that towards the transaction, a sum of Rs. 36,900/- was due to the said Corporation and the first respondent was the collecting agent of the Vardhaman Finance Corporation and that when the first respondent approached the revision petitioner for the balance amount due, Ext.P4 cheque for Rs. 36,900/- drawn on the State Bank of Travancore Extension counter Branch dated 24.10.2006 was issued and that when sent for collection Ext.P4 was returned dishonoured for the reason 'insufficient funds' and despite the notice demanding discharge, the liability was not discharged. 2. Responding to the process issued, the revision petitioner entered appearance. When the particulars of the offence were read over and CRL. R.P. 3132/2006 2 explained, the revision petitioner pleaded not guilty. Hence he was sent for trial. On the side of the first respondent, his power of attorney holder was examined as PW.1. Exts. P1 to P7 series were marked. When questioned under Section 313 (1)(b) of the Code of Criminal Procedure, the incriminating evidence was denied and it was further stated that for purchasing a two wheeler, a hire purchase agreement was entered into with Vardhaman Finance Corporation and that Rs. 27,000/ was remitted towards the hire purchase amount and later, when three instalments fell due, the vehicle was repossessed by the financier and in the event the value of the vehicle is adjusted towards the balance amount, the revision petitioner is entitled to refund. In support of the defence plea, he was examined as DW.1. Ext.D1, a notice caused by the financier was also produced. The trial court, on appraisal of the evidence, found in favour of the first respondent. Consequently, the revision petitioner was convicted and sentenced to imprisonment till the rising of court and a fine of Rs. 5,000/-. In Crl. Appeal 380 of 2005, the Additional Sessions Judge, Fast Track (Adhoc-1), Kozhikode, confirmed the above conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision was filed. 3. The learned counsel for the revision petitioner was heard and CRL. R.P. 3132/2006 3 perused the documents as well as the judgments of the courts below. The evidence of PW.1 would show that no amount was due to the first respondent who prosecuted the revision petitioner. The first respondent was only a collecting agent of the Vardhaman Finance Corporation, to whom the revision petitioner owed some amount in respect of a hire purchase agreement for the purchase of a two wheeler. PW.1, in cross examination, had admitted that the revision petitioner had remitted 11 instalments at the rate of Rs. 2,120/-. It was also admitted that the total amount advanced was only Rs. 30,000/- and later, the vehicle was repossessed by the financier. PW.1 had to admit that in case the vehicle was sold and value is adjusted towards the amount due to the financier, there would be amount to be refunded to the revision petitioner. In the light of the above evidence, I find that no amount was due to the first respondent from the revision petitioner. The amount was actually due to the financier and it is lesser the amount for which Ext.P4 was drawn. The financier has not at all come forward to prosecute the revision petitioner. By the evidence of PW.1, it is established that the amount shown in Ext.P4 cheque would not be actually due to the financier. In the above circumstances, I find that the conviction and sentence under challenge are not sustainable. The revision petitioner is entitled to an order of acquittal. CRL. R.P. 3132/2006 4 In the result, the revision petition is allowed by setting aside the conviction and sentence under challenge. The revision petitioner would stand acquitted. The fine amount, if any deposited, shall be refunded to the revision petitioner. P.S. GOPINATHAN, (JUDGE) knc/