IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 3915 of 2008() ------------------------------ CRA.765/2005 of ADDL. SESSIONS COURT,FAST TRACK-I (ADHOC), THRISSUR ST.4228/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED. -------------------------------------------------------- KUNJACHAN @ SEBASTIAN JOSEPH, S/O.JOSEPH, NEETHIRIKKAL HOUSE, PAZHAYANNUR DESOM & VILLAGE, PAZHYANNUR P.O. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. K.V.GEORGE, S/O.VARKEY, KOTTUKANDATHIL HOUSE,L KANIYARKODE, P.O.THIRUVILLAMALA, NOW RESIDING AT KOTTUKANDATHIL VEETTIL, ANCHANGADI DESOM, CHEMBOOKAVU VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 ADV.SRI.S.RAJEEV FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3915 of 2008 -------------------------------------- Dated this the 10th day of June, 2009. ORDER This revision is in challenge of judgment of the learned Additional Sessions Judge (Adhoc), Fast Track-I, Thrissur in Crl.Appeal No.765 of 2005 setting aside the conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and remanding the case to the court of learned magistrate for fresh disposal after giving opportunity to both sides to adduce evidence. 2. Short facts necessary for the disposal of this revision are: Respondent No.1 claimed that petitioner borrowed Rs.80,000/- from him on 1.5.2003 and for the discharge of that liability issued cheque dated 1.5.2003 for Rs.50,000/- drawn on Dhanalakhsmy Bank and another cheque dated 6.5.2003 for Rs.30,000/- drawn on South Indian Bank. Those cheques were dishonoured for insufficiency of funds and inspite of dishonour intimation and demand, petitioner did not pay the amount. The present case is in respect of the cheque dated 6.5.2003 for Rs.30,000/- (drawn on South Indian Bank). According to respondent No.1, he has filed another case concerning dishonour of cheque dated 1.5.2003 for Rs.50,000/- (drawn on Dhanalakshmy Bank). Respondent No.1 produced the relevant documents and filed his proof affidavit. He was examined as PW1 and his documents were marked as Exts.P1 to P5. Ext.P1 is Crl.No.3915/2008 2 the cheque in question, dated 6.5.2003. Petitioner did not adduce any evidence. Learned magistrate found in favour of due execution of the cheque as pleaded by respondent No.1, convicted the petitioner and sentenced him to undergo simple imprisonment till rising of the court and to pay compensation of Rs.30,000/- to respondent No.1. Petitioner challenged that conviction and sentence in appeal. In the course of hearing of the appeal, it was pointed out that in the proof affidavit of respondent No.1 reference is made to the cheque dated 1.5.2003 for Rs.50,000/- but what is marked in evidence as Ext.P1 is the cheque dated 6.5.2003 for Rs.30,000/-. Noting that discrepancy in the evidence, learned Additional Sessions Judge set aside the conviction and sentence and remitted the case to the court of learned magistrate for fresh disposal after giving both sides opportunity to adduce evidence. That judgment by way of remand is under challenge in this revision at the instance of the accused. It is contended that learned Additional Sessions Judge should not have remanded the case to the trial court nor given opportunity to respondent No.1 to correct or erase the mistake in the evidence. 3. I have gone through the records. It is seen that in the complaint, there is reference to the petitioner issuing cheque dated 1.5.2003 for Rs.50,000/- drawn on Dhanalakshmy Bank and cheque dated 6.5.2003 for Rs.30,000/- drawn on South Indian Bank. Number of the cheque dated 6.5.2003 is given in the complaint as 704177. Ext.P1 is cheque No.704171 dated 6.5.2003 for Rs.30,000/- drawn on South Indian Bank. In the office copy of the Crl.No.3915/2008 3 notice produced by respondent No.1 also reference is made to cheque No.704171 dated 6.5.2003 for Rs.30,000/-. In the proof affidavit of respondent No.1, there is reference to cheque dated 1.5.2003 for Rs.50,000/- drawn on Dhanalakshmy Bank and the cheque dated 6.5.2003 for Rs.30,000/- (Ext.P1). But it is seen that towards the concluding portion of the affidavit request is made to mark as Ext.P1, cheque No.301240 dated 1.5.2003 (drawn on Dhanalakshmy Bank Ltd.). Learned Additional Sessions Judge thought that it is evidently an inadvertent mistake committed by the counsel while drafting the proof affidavit and hence in the ends of justice it is necessary to give an opportunity to respondent No.1 as well as the petitioner to adduce evidence. 4. Section 386(b) of the Code of Criminal procedure empowers the appellate court even in an appeal from a conviction to order that the convicted accused be re-tried by a court of competent jurisdiction. As such, it was within the power of the appellate court, notwithstanding that appeal was preferred by the convicted accused to direct fresh disposal after recording further evidence. I do not find any jurisdictional error committed by the learned Additional Sessions Judge in ordering remand. 5. On the facts also remand was required. I stated that in all the proceedings respondent No.1 has stated that the case is in respect of cheque No.704171 dated 6.5.2003 for Rs.30,000/- but towards the concluding portion of the proof affidavit what is requested to be marked as Ext.P1 is cheque No.301240 dated 1.5.2003. I have perused the records and find that what is Crl.No.3915/2008 4 marked as Ext.P1 is cheque No.704171 dated 6.5.2003 for Rs.30,000/- drawn on South Indian Bank Ltd. Th cheque number and other details given in the last portion of the chief affidavit appears to be a mistake. It is in these circumstances that learned Additional Sessions Judge thought it just and proper to remand the case for fresh disposal after giving both sides opportunity to adduce evidence. Petitioner also is getting an opportunity to adduce evidence notwithstanding that he had not even given reply to the statutory notice and had not adduced evidence in the trial court at the first instance. There is no reason to interfere with the judgment under challenge. Revision Petition fails. It is dismissed. Parties are directed to appear in the trial court on 6.7.2009. Crl.M.A.No.11955 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks