IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 Crl.Rev.Pet.No. 2732 of 2004(B) ------------------------------- CRA.129/2002 of ADDL. SESSIONS COURT, ALAPPUZHA CC.883/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... PETITIONER/APPELLANT/ACCUSED --------------------- K.G.DINESH BHAT, S/O.GOPALA VADHYAR, KILLIKKATTU HOUSE, CMC III, VADAKKU MURI, CHERTHALA P.O. BY ADV. SRI.MAT.PAI SRI.MAHESH T.PAI RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. N.T.SUGUNAN, NIKARTHIL HOUSE, CHENGANDA, CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.J.OM PRAKASH FOR R1 PUBLIC PROSECUTOR, SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------- Crl.R.P.No. 2732 OF 2004 --------------------------- Dated this the 8th day of July, 2011 O R D E R ~~~~~~~ Revision petitioner is the accused in C.C.No.883/97 on the file of the Judicial Magistrate of the 1st Class, Cherthala. The 1st respondent herein prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act (for short 'NI Act'). The trial court, on appraisal of the evidence on record, arrived at a conclusion of guilt. Consequently, he was convicted and sentenced to simple imprisonment for three months with order to pay of Rs.70,000/- as compensation to the 1st respondent under Section 357(3) of the Code of Criminal Procedure. In Crl.A.No.129/2002, the Sessions Judge, Alappuzha, confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition was preferred. 2. In the revision, the learned counsel for the revision petitioner produced a judgment of the subordinate Judge Crl.R.P.No.2732/2004 2 Cherthala in A.S.No.40/2001 along with Crl.M.A.8059/2010 with a pleading that basing upon the very same cheque on the basis of which the revision petitioner was prosecuted the 1st respondent preferred a suit as O.S.No.930/98 before the Additional Munsiff, Cherthala. Though suit was decreed by the trial court, in appeal the decree and judgment were reversed on arriving at a finding that the 1st respondent committed material alteration by changing the date of the cheque as 1.2.1997, whereas the cheque was dated 1.2.1991. The learned counsel for the 1st respondent did concede that in appeal the 1st respondent was non-suited as above. According to the learned counsel, the above judgment is not relevant and binding upon the 1st respondent as it would not come under Section 40 to 43 of the Indian Evidence Act. In support of this argument, the learned counsel relied upon the decision in Premsanker v. I.G. of Police [2002(3) KLT 389 (SC)]. 3. Having heard either side, I find no merit in the submission made by the learned counsel for the 1st respondent. The ratio of the decision in Premsanker's case is not applicable Crl.R.P.No.2732/2004 3 to the case on hand. Here, in this case, Ext.P1 is the cheque in dispute. The 1st respondent simultaneously sued against the revision petitioner on the basis of Ext.P1 for realisation of the amount due thereon. In appeal, the learned Subordinate Judge arrived at a finding that the cheque was issued to the 1st respondent on 1.2.1991 and that date was corrected as 1.2.1997 and that after making material alteration the suit was instituted. I find that the said finding is binding upon the 1st respondent. In the light of the above finding, the conviction and sentence under change are not sustainable. The revision petitioner is entitled to an order of acquittal. 4. In the result, the revision petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted. The bail bond, if any, executed by him shall remain cancelled. In the event, any fine amount is deposited that shall be refunded to the revision petitioner. (P.S.GOPINATHAN, JUDGE) ps/11/7