IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 Crl.Rev.Pet.No. 1667 of 2007() ----------------------------------------- CRA.192/2006 of ADL. SESSIONS COURT,(ADHOC-II), ERNAKULAM. CC.989/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------- A.M.PERUMAL , HOUSE NO.27/1539, PULLASSERY LANE, NEAR SHIPYARD QUARTERS, KADAVANTHARA, KOCHI-20, PRESENTLY WORKING AS THE MANAGER, FAYEDA TRAVELS, PALAYAM, THIRUVANTHAPURAM. BY ADV MR.PRAKASH P.GEORGE RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE -------------------------- 1. M/S.STAR TOURS AND TRAVELS (INDIA) LTD, A PRIVATE LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT M.G.ROAD, NEAR SHIPYARD, KOCHI-15, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.JEFFCELY FERNANDEZ. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, DISTRICT AND SESSION COURT, ERNAKULAM. R1 BY ADV. MR.C.A.CHACKO MR.K.GOPALAKRISHNA KURUP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss “CR” P.S.GOPINATHAN, J. = = = = = = = = = = = = = Crl.R.P.No.1667 of 2007. = = = = = = = = = = = = = Dated this the 15th day of March, 2010. O R D E R The revision petitioner is the accused in CC.No.989/2001 on the file of the Judicial Magistrate of the First Class-II, Kochi. The first respondent herein prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act with a plea that there was business transaction between the revision petitioner and the first respondent following which there was outstanding liability and in discharge of a part of the liability Ext.P2 cheque dated 18.12.2000 for Rs.5,60,000/- drawn on Vysya Bank, Ravipuram Branch was issued and that when Ext.P2 was sent for collection it was returned bounced for insufficient funds and that though a notice demanding discharge of Crl.R.P.No.1667 of 2007. -: 2 :- liability was issued to the revision petitioner, it was returned and that the liability was not discharged. 2. The learned Magistrate after taking cognizance issued process to the revision petitioner, responding to which he entered appearance. When the particulars of the offence were read over and explained, the revision petitioner pleaded not guilty. Hence, he was sent for trial. On the side of the first respondent, the Managing Director of the first respondent was examined as Pw1. Exts.P1 to P7 were marked. During the course of cross examination Exts.D1 to D7 were marked. After closing the evidence for the prosecution the revision petitioner was questioned under Sec.313 of the Criminal Procedure Code. It appears that on behalf of the revision petitioner, the counsel had given statement. The plea advanced was that the revision petitioner had left the station on 31.8.2000 with due notice to the first respondent and despite the knowledge of change Crl.R.P.No.1667 of 2007. -: 3 :- of address, notice was sent in the old address and that the revision petitioner was neither aware of any notice nor had received any notice and that Ext.P2 was issued as security and that a sum of Rs.5,60,000/- due to the first respondent was discharged in instalments and that the documents in proof of discharge were produced and that misusing a blank cheque given as security, the prosecution was launched. Thereafter, the revision petitioner and another were examined as Dws.1 and 2. Through Dw1, Exts.D8 to D12 were marked. During the course of the cross examination of Dw1, a computer print of the accounts said to have been containing the business transaction with the revision petitioner was tentatively marked as Ext.D13. On appraisal of the evidence, the trial court arrived a conclusion that Ext.D13 is admissible in evidence and that Ext.P2 was issued in discharge of liability and there is constructive notice and that the first respondent had succeeded to establish the Crl.R.P.No.1667 of 2007. -: 4 :- offence alleged. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months. He was also directed to pay rupees six lakhs as compensation under Sec.357(3) of the Crl.P.C. to the first respondent. 3. Feeling aggrieved, he took up the matter in appeal before the Sessions Judge, Ernakulam. The Addl.Sessions Judge (Adhoc-II), Ernakulam to whom the appeal was made over, by judgment dated 15.1.2007 confirmed the conviction. But the sentence was reduced to simple imprisonment for one month. The order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. 4. No statutory notice was issued is one of the defence advanced by the revision petitioner. Ext.P6 would show that the notice was addressed to the revision petitioner Crl.R.P.No.1667 of 2007. -: 5 :- at his residence at Kadavanthara, Kochi. The endorsement thereon would show that through the postman had tried on various occasions between 11.6.2000 and 22.6.2000, the house was found locked. Hence, he returned the same with the endorsement 'addressee continuous locked'. According to the revision petitioner, who was examined as DW1, he was transferred from the station on 31.8.2000 and thereafter he vacated the house at Kochi and the matter was informed to the first respondent. But no document was produced in support of the contention that the change of address was given notice to the first respondent. The revision petitioner has no case that the change of address was communicated to the postal authorities. In support of the contention that the change of address was communicated to the first respondent, Dw2 was examined. Dw2 had given evidence to that effect. But, when he was cross examined, he had to admit that he had not seen any document regarding the Crl.R.P.No.1667 of 2007. -: 6 :- communication intimating the change of address. So, it had to be presumed that Dw2 is a hired witness or what he had deposed is hearsay information which is hit by Section 60 of the Evidence Act. Such being the nature of the evidence available, I am persuaded to conclude that there is no evidence to show that the revision petitioner had communicated the change of address to the first respondent or to the postal authorities. In the event change of address was communicated to the postal authorities, the postman, instead of going to the house of the revision petitioner one day or other, would have diverted the letter to the changed address. But, since the change of address was not communicated, postman had no option other than to do as stated earlier. There is no case that the address shown in Ext.P6 is not that of the revision petitioner. Some times he might have shifted his residence as alleged by him, but in the absence of proof to conclude that the change of address was communicated to the first respondent or to the postal authorities neither the first respondent nor Crl.R.P.No.1667 of 2007. -: 7 :- the postal authorities can be blamed for failure to serve notice in the changed address. So, the materials on record would convincingly establish that the notice of dishonour of cheque was duly communicated to the revision petitioner in the available address. It could not be served upon due to the fault of the revision petitioner. Revision petitioner is not entitled to any benefit for his default. So, it had to be found that there is constructive notice. The revision petitioner cannot escape the prosecution with plea of want of statutory notice. Courts below were right in rejecting that contention. 5. Second contention raised is plea of discharge. Exts.D1 to D7 were produced in support of the plea of discharge. A perusal of Exts.D1 to D7 would show that those are receipts issued before Ext.P2. So, Exts.D1 to D7 are not reliable to come to a conclusion that there is discharge as pleaded. 6. Ext.D11 is a certified copy of the return submitted by the first respondent in Form No.8 before the Registrar of Crl.R.P.No.1667 of 2007. -: 8 :- Companies. Relying upon Ext.D11, the learned counsel for the revision petitioner submitted that Ext.D11 would show that the amount due from the revision petitioner as on 23.3.2000 was Rs.1,86,868.25 only. Ext.D11 being much earlier to Ext.P2, no reliance can be given to Ext.D11 also to come to a conclusion that the amount shown in Ext.P2 was not due. 7. In attempt to establish the plea of discharge, the revision petitioner filed a petition as CMP.No.3456/2004 on 28.9.2004 praying for an order directing the first respondent to produce the documents specified. The trial court, on the same day passed an order directing the first respondent to produce the original Day Book and Ledger maintained by him. Curiously, the documents sought to be produced were not at all produced. It is submitted that no affidavit regarding the non-availability of the document was also filed. When Pw1 was cross examined, he stated that he is in Crl.R.P.No.1667 of 2007. -: 9 :- possession of the accounts. Though at the first instance, he stated that he could produce the same, later, he turned round and submitted that the documents could not be produced with no good reason for nonproduction. However, stating to be computer out put, Ext.D13 was produced during defence stage as if it is the electronic document coming under Sec.65B of the Indian Evidence Act. The document was thrust into DW1 during the course of cross examination as if a document admissible in evidence under Sec.65B even without further proof. Since the admissibility of Ext.D13 is much challenged, a reading of Sec.65B of the Indian Evidence Act would be relevant:- “65B. Admissibility of electronic records:- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated Crl.R.P.No.1667 of 2007. -: 10 :- therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and Crl.R.P.No.1667 of 2007. -: 11 :- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Omitted as not relevant. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,- (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of Crl.R.P.No.1667 of 2007. -: 12 :- this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) Omitted as not relevant. 8. Going by the evidence on record, I find that the first respondent had not cared to satisfy the conditions under Sec.65B(2). Neither Ext.D13 contains a certificate as contemplated under Sec.65B(4) of the Indian Evidence Act. Neither the person who took out the print copy was examined nor Ext.D13 was authenticated by any person. In this view of the matter, no reliance can be given to Ext.D13. 9. The evidence of Pw1 and Dw1 would show that there were various transactions between the revision petitioner and the first respondent and there are various payments also. Ext.D12 would show that the revision petitioner had been facing another prosecution for dishonour of three other cheques, all Crl.R.P.No.1667 of 2007. -: 13 :- issued in discharge of liability arose out of business transaction. This circumstance persuade me to doubt about the genuineness of the plea that the cheque was issued in discharge of the liability. In the normal course, if an earlier cheque is dishonoured, the first attempt would be to clear that liability. No debtor would deliver another cheque to make room for another prosecution. The possibility for demanding and delivering blank cheques as security cannot be ruled out. No creditor would go content with another cheque for subsequently arisen liability when the earlier cheque issued in discharge of another liability returned dishonoured and the liability remains not discharged. Acceptance of another cheque in that circumstance would be either with intent to go for prosecution or to get a proof. In this view of the matter and having due regard to the defence advanced, I find that the revision petitioner had obtained order to produce Day Book and Ledger with Crl.R.P.No.1667 of 2007. -: 14 :- bonafide intention to substantiate the plea of discharge. Since the document ordered to be produced was suppressed by the first respondent, the revision petitioner is entitled to an inference in his favour. According to the learned counsel for the first respondent, other than the software copies, the first respondent had not been maintaining any Day Book or Ledger. But, regarding that aspect, there is no evidence. The learned counsel for the first respondent vehemently argued that Ext.D13 would show that all the payments covered by Exts.D1 to D7 are correctly entered and for that reason itself Ext.D13 is admissible and by the production of Ext.D13, the first respondent had substantially complied with the direction of the trial court in CMP.No.3456/2004. So, according to the learned counsel, no adverse inference shall be taken against the first respondent. Ext.D13 would not attain credibility merely because, it contains entries relating to Exts.D1 to D7. The issue is whether the Crl.R.P.No.1667 of 2007. -: 15 :- document as a whole is admissible or not. It is also pertinent to note that, as mentioned earlier, nobody had certified Ext.D13 as the true or correct computer copy. Neither it satisfies the requirements under Sec.65B(2) and (4). 10. The learned counsel further argued that since Ext.D13 was produced at the request of revision petitioner, in the light of Sec.65B(1), it being an electronic record it is admissible in evidence without further proof. A careful reading of Sec.65B(1) would show that, electronic record would be admissible in evidence only if the record produced satisfies the conditions laid down under Sec.65B(2) and contains a certificate as contemplated by Sec.65B(4). If the document doesn't satisfy the conditions under Sec.65B(2) or if it is not certified as contemplated under Sec.65B(4), it is inadmissible. Merely because the production of the accounts was sought by the revision petitioner, the record so produced cannot be accepted in evidence so long as it didn't Crl.R.P.No.1667 of 2007. -: 16 :- satisfy the conditions stipulated under Sec.65B(2) or doesn't contain the certificate as contemplated under Sec.65B(4). Here in this case the revision petitioner didn't seek production of electronic record. But, he sought production of Day Book and Ledger maintained by the first respondent. Instead of that, Ext.D13 was produced as if electronic record, the admissibility of which was disputed by the revision petitioner. Hence the first respondent cannot escape the liability to satisfy the conditions in relation to the information and computer in question as contemplated under Sec.65B of the Evidence Act. Ext.D13 didn't satisfy the conditions. Courts below, without examining the above aspect relied upon Ext.D13. Error is apparent. Ext.D13, for the reasons stated above is not admissible in evidence. Such being the materials on record, I find that the attempt of the revision petitioner to establish the plea of discharge was defeated by the first respondent by suppressing the Crl.R.P.No.1667 of 2007. -: 17 :- documents in the possession of the first respondent. Revision petitioner is entitled to the benefit of reasonable doubt. The conviction and sentence are not sustainable. He deserves to be acquitted. In the result, the revision petition succeeds. While setting aside the conviction and sentence under challenge, the revision petitioner shall stand acquitted. The bail bond executed by the revision petitioner shall stand cancelled and would be set at liberty. P.S.GOPINATHAN (Judge) Kvs/-