IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 Crl.Rev.Pet.No. 1080 of 2011() ------------------------------ AGAINST THE ORDER DATED 18.2.2011 IN ST 111/2010 IN CMP.175/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,ETTUMANUR .................... REVN. PETITIONER: PETITIONER/ACCUSED --------------------------------------- LAILA, D/O. THOMAS, CHANATHARA, (BIJUVILLA) MANJADI, THIRUVALLA, NOW RESIDING AT THEKKUMANNIL, PUTHENPURACKAL, VENNIKULAM. BY ADV. SRI.C.K.SASI RESPONDENT(S): COMPLAINANT -------------------------- 1. BABAN.D.VELUTHADATHUKALAYIL HOUSE, ETTUMANOOR.P.O., KOTTAYAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY P.P. SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.1080 of 2011 ---------------------------------------- Dated the 16th Day of June , 2011 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the order dated 18.2.2011 in CMP No.175 of 2010 pending before the court of Judicial First Class Magistrate-II, Ettumanoor. 2. As per the impugned order, the learned Magistrate dismissed the above CMP filed by the revision petitioner with a prayer for recalling some of the witnesses, who were already examined. According to the revision petitioner, the witnesses sought to be recalled entered into a conspiracy and created forged documents and the same were produced before the trial court. According to the revision petitioner, the acknowledgment cards, produced as evidence to prove the receipt of statutory notice, do not bear the seal of the post office and therefore such document is a forged one. Hence, according to the defence, the senior Superintendent of Post office who was examined as DW1 be recalled for CRRP 1080/11 -:2:- further examination. The said prayer was stoutly opposed by the complainant. The main contention of the complainant is to the effect that the persons those who are sought to be recalled were examined already and they were subjected to cross examination and all the evidence were brought out during their deposition and the present petition is to protract the case. 3. In the impugned order, the learned Magistrate has observed that in the complaint itself, it is alleged that two notices were issued to the accused in terms of the proviso to Section 138 of the N.I.Act and the postal receipts for the despatch of the notices were marked as Ext.P5(a) and (b). From the impugned order it is also discernible that A.D cards evidencing the receipt of the notices have been marked as Ext.P6(a) and (b) and it is also borne out from the evidence that since the complainant has not received the A.D cards earlier, he had filed a complaint before the postal authorities regarding the whereabouts of the despatch of notice vide Ext.P8(a). It is also observed that, in reply to the above complaint, the postal CRRP 1080/11 -:3:- authorities, vide Ext.P3(a) and Ext.P10(a), informed the complainant that the articles were delivered to the addressee. As per the order, in the meanwhile, the A.D cards were received by the complainant, but the same were not bearing the seal of the post office. According to the learned Magistrate, there is no dispute in this case regarding the receipt of notice. In the order the learned Magistrate has further held that during the cross examination of the complainant, there was not even a suggestion that the accused had not received the notice. The evidence of defence witnesses, namely, DWs.1, 2 and 3, according to the learned Magistrate, shows that sometimes there happens slip of the postal authorities in stamping the seal in the acknowledgment card. But according to the learned Magistrate, the present case of the accused is that Ext.P6(a) and (b) acknowledgment cards have been produced on the basis of a conspiracy between the postal authorities and PW1 since the cards did not bear the seal of the post office. The learned Magistrate further found that notice has been duly CRRP 1080/11 -:4:- despatched in the known addresses of the accused as evidenced by the postal receipts. It is also the finding of the learned Magistrate that the accused has no case in the cross examination of PW1 that she is not residing in any of the addresses mentioned in the notices. It is also specifically found that there is no suggestion that the accused did not receive the notice. According to the learned Magistrate, during the cross examination, the suggestion made to PW1 was that Ext.P1 cheque was issued in blank as a security which was misused by PW1. Thus, after considering the merits of the contentions in the light of the available materials and evidence, the learned Magistrate in the impugned order has further found that, whether the acknowledgment card produced is forged or not does not arise for consideration in the case on hand and if an inquiry is conducted regarding the same, it will go away from the main inquiry in the case, and it is further found that, whether the acknowledgment card produced is reliable or not, can be considered in the totality of the evidence adduced in this case and other CRRP 1080/11 -:5:- aspects are not relevant in this case. It is the above findings and observations challenged in this Crl.R.P. 4. I have heard Sri C.K. Sasi, the learned counsel appearing for the revision petitioner. 5. According to the learned counsel for the petitioner, the acknowledgment cards produced before the trial court are forged documents and the same cannot be accepted as true or genuine for the purpose of deciding the case in which the revision petitioner facing the prosecution. It is also the case of the learned counsel that, as forged documents are produced and adduced as evidence, the witnesses are liable to be prosecuted for the same and in order to bring those facts connected with the conspiracy and forgery, examination of these witnesses are absolutely necessary. I am unable to accept the above contention. In the impugned order itself, after elaborate discussion of the entire matter, which I referred to above, the learned Magistrate is of the opinion that the question whether the acknowledgment cards are forged or not does not arise for consideration in the case which is CRRP 1080/11 -:6:- pending before the learned Magistrate and if an enquiry is conducted regarding the same, it will go away from the main inquiry in the case. According to me, the above findings and observation are absolutely correct and there is no perversity of illegality at all. Regarding the service of notice as contemplated by the proviso to section 138 of the NI Act and the findings thereon have a vital bearing to fix the liability on the accused. In the present case, even according to the revision petitioner she has no case that no notice was served on her as per the proviso to Section 138. Counsel for the petitioner submitted that the petitioner has received only one notice. The proviso to section 138 does not contemplate or fix the number of notices to be served on the accused demanding repayment of the amount. So, even service of one notice is sufficient to attract the penal provision of Section 138 of the Act. The enquiry conducted by the Magistrate confined to that point only. Therefore, the decision of the learned Magistrate rejecting the petition to recall the witnesses as sought vide CMP No.175/10 is absolutely CRRP 1080/11 -:7:- proper, regular, and legal and no interference is warranted. But I have no hesitation to observe that, if any document which produced before the trial court by either of the parties is a forged one, there are ample provisions under Chapter XXVI of Cr.P.C to abate the same and to deal with such wrong doers. It is for the learned Magistrate, in the given facts and circumstances of the case, after appreciating the documents and evidence adduced before it, to decide whether there is any provision for initiation of proceedings under Chapter XXVI of Cr.P.C. The petitioner can also take appropriate legal steps for redressal of her grievance, if any, at the appropriate stage or forum. Subject to the above observation, this Crl.R.P is dismissed. V.K.MOHANAN, JUDGE kvm/-