IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.Rev.Pet.No. 49 OF 2007(A) ----------------------------- CRA.456/04 of ADDL.SESSIONS COURT (SPL.), KOTTAYAM CC.334/01 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHANGANACHERRY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- TITO ABRAHAM, PUTHENPURAYIL KAINADY P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.K.S.HARIHARAPUTHRAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------- 1. M.C. THOMAS, MARATHINAL HOUSE, PAIPAD, CHANGANACHERRY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 SRI.JOHN JOSEPH VETTIKAD FOR R1 SRI.JOSEPH ABRAHAM (KOTTAYAM) FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON 03/11/2008 PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 49 OF 2007 ------------------------------------------ Dated this the 3rd day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.334 of 2001 on the file of Judicial First Class Magistrate-II, Kottayam. First respondent contended that petitioner borrowed Rs.1,40,000/- and towards its repayment issued Ext.P1 cheque drawn in his account and when presented, it was dishonoured under Ext.P2 for want of sufficient funds. Ext.P6 notice sent to the revision petitioner claiming the amount covered under Ext.P1 cheque was returned unclaimed. Petitioner did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. He contend that Ext.P1 cheque was not issued to the revision petitioner and he did not borrow any money from him and Ext.P1 cheque was in fact issued as a blank cheque to one Sabu, who was examined as DW3 on his side and it was misused by the first respondent with the assistance of DW3. First respondent was examined as PW1 and Exts.P1 to P6 were marked. Petitioner was examined as DW4 CRRP 49/07 2 and three other witnesses were examined on his side and Ext.D1 to D3 were marked. Petitioner was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.1,40,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl. Appeal 456 of 2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was not present. The counsel was not present on the previous posting days also. Learned counsel appearing for first respondent was heard. 3. Learned counsel appearing for first respondent argued that Ext.P1 cheque was proved to be issued by the revision petitioner after writing and executing it in the presence of PW1 and therefore presumption provided under section 139 of Negotiable Instruments Act was rightly drawn by the Courts below and there is no reason to interfere with the conviction or sentence. 4. The revision petition discloses that revision petitioner CRRP 49/07 3 had filed an application before learned Magistrate to send Ext.P1 to an expert to compare the handwriting seen in Ext.P1 with the admitted handwriting of the petitioner. The judgment of the learned Magistrate shows that petition was dismissed as petitioner admitted the signature in Ext.P1 cheque. 5. On going through the judgments of the Courts below as well as the evidence on record, it is clear that both the Courts proceeded with the case mainly analysing the evidence of the revision petitioner. As the case of the revision petitioner was that Ext.P1 cheque was issued as a blank cheque to DW3 and it was misused by the first respondent and evidence of DW3 disproves the said contention, it was taken that the defence case is not true and case of the first respondent was accepted. The question whether Ext.P1 cheque was issued by the petitioner towards discharge of the loan and whether there was in fact a borrowal was not independently considered. It is to be borne in mind that the case of the first respondent was that he granted a loan of Rs.1,40,000/- to the revision petitioner, who is known to him personally, without getting any record acknowledging the receipt of the amount or record evidencing the promise to repay the same within one month as alleged. According to PW1 CRRP 49/07 4 petitioner undertook to repay the amount within one month and when it was not repaid, PW1 contacted him over phone and had also gone to his house and then petitioner came to his office and Ext.P1 cheque was written and issued by petitioner at his office. The case of revision petitioner is that there was no transaction with first respondent and he did not borrow any amount and did not execute the cheque in favour of the revision petitioner. 6. It is seen that Ext.P1 cheque is dated 30.3.2000. Ext.P2 shows that the cheque was presented for encashment only on 15.9.2000, more than five months after issuance of Ext.P1 cheque. The evidence of PW1 shows that he is running a financial concern and is granting loan on pledging ornaments. If case of the first respondent is correct, first respondent granted a loan of Rs.1,40,000/- from his house without getting any document to the revision petitioner, believing his words that the amount will be repaid within one month. Even according to PW1 the amount was not repaid as promised and first respondent was compelled to contact the petitioner over phone and even thereafter he did not pay the amount and therefore first respondent had approached petitioner at his house and still he did not pay. Finally petitioner approached first respondent at CRRP 49/07 5 his office and filled up Ext.P1 cheque and issued the same. In the ordinary course, when first respondent is running a financial concern, he would demand the interest covered for the amount, when a cheque is being issued towards repayment of the amount borrowed after a lapse of time. Whatever it be, Ext.P1 is only for the principal amount. When the cheque was issued to first respondent towards repayment of the amount borrowed and that too on the failure to pay the amount as promised, one would expect first respondent to encash the cheque immediately. There is no explanation for non presentation of the cheque for more than five months. The argument of the learned counsel is that PW1 was not asked about it at the time of his examination and therefore PW1 has no opportunity to explain the reason why the cheque was not presented immediately and without affording an opportunity to explain the reason for the delay, no inference can be drawn against first respondent. 7. When the entire evidence is to be taken into consideration these are all relevant aspects which should have been considered by the Courts below while considering the case whether Ext.P1 cheque was issued towards repayment of the amount borrowed. Unfortunately both the Courts mainly CRRP 49/07 6 considered about the failure of the defence to prove that Ext.P1 cheque was issued as a blank cheque. True, when DW3 himself disowned the case of first respondent the case that Ext.P1 cheque was issued to DW3 could not have been accepted by the Courts below. It is also true that petitioner has no other case on Ext.P1. But that by itself will not enable first respondent to establish the case. When viewed from this angle, question whether Ext.P1 cheque was written by the revision petitioner in his own handwriting assumes importance. Unfortunately Courts below did not properly consider this aspect also. Even though revision petitioner had filed an application to send the cheque to an expert to find out whether the handwriting in Ext.P1 cheque is that of the revision petitioner, it was rejected by the learned Magistrate on the ground that revision petitioner had admitted his signature in Ext.P1. If the case of the revision petitioner is true, and Ext.P1 cheque was not issued to first respondent towards repayment of Rs.1,40,000/- as claimed by first respondent, Ext.P1 could not have been written by the revision petitioner in his own handwriting. If Ext.P1 cheque was written in the handwriting of the revision petitioner, the case of first respondent that it was issued towards repayment of the amount CRRP 49/07 7 borrowed is to be accepted. On the other hand, if it is to be found that the handwriting in Ext.P1 is not that of the revision petitioner, it would definitely fortify his case that Ext.P1 cheque was not issued towards repayment of amount borrowed by him, as claimed by first respondent. The signature of the revision petitioner in Ext.P1 cheque, in the circumstances of the case is not very relevant. In such circumstances I find that learned Magistrate was not justified in disallowing the prayer of the revision petitioner to get a report of an expert on the handwriting seen in Ext.P1 cheque. 8. Therefore revision is allowed. Conviction and sentence passed by the Courts below are set aside. C.C. 334 of 2001 is remanded to Judicial First Class Magistrate-II, Kottayam. Learned Magistrate is directed to send Ext.P1 cheque to Forensic Scientific Laboratory, Thiruvananthapuram at the expense of the revision petitioner to compare the handwriting seen in Ext.P1 with the admitted handwriting of the revision petitioner. Revision petitioner shall take steps before the learned Magistrate, within two weeks from the date of appearance. Learned Magistrate shall forward Ext.P1 cheque along with the admitted handwriting of the accused taken from CRRP 49/07 8 open Court as well as any other admitted handwriting of the relevant period made available by the parties, to the expert and dispose the case after getting report. If the revision petitioner/ accused fails to take steps as directed, learned Magistrate is at liberty to proceed without the report taking that the handwriting in Ext.P1 is that of the revision petitioner. Learned Magistrate shall dispose the case immediately after getting report without further delay. Parties are directed to appear before the Magistrate on 27.11.2008. Send back the records forthwith. M. SASIDHARAN NAMBIAR, JUDGE Okb/-