IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 2598 of 2008(D) ------------------------------- CRA.133/2007 OF ADDL. DISTRICT & SESSIONS JUDGE, THODUPUZHA. ST.642/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALY. .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- SHAJAN, S/O. FRANCIS, BAVELI VEEDU, KOONAMMAVU.P.O, ATTATHARA, COCHIN-18. BY ADV. SMT.C.G.PREETHA RESPONDENTS/RESPONDENT & COMPLAINANT/STATE: ----------------- 1. BASIL JOSEPH, MANAGER, HOME SHINE HIRE PURCHASE COMPANY, KOTHAMANGALAM KARA, KOTHAMANGALAM TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.RENJITH THOMAS FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2598 OF 2008 ------------------------------------------ Dated this the 17th day of September, 2008 O R D E R Petitioner is the accused and second respondent the complainant in ST 642 of 2005 on the file of Judicial First Class Magistrate Court, Adimaly. He was convicted and sentenced to simple imprisonment for three months and a compensation of Rs.1,30,000/- under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Court, Thodupuzha in criminal appeal 133 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the sentence and dismissed the appeal. The appeal is challenged in this revision filed under Section 397 and 401 of Code of Criminal Procedure. Notice was served on the first respondent complainant and he appeared through a counsel. 2. Learned counsel appearing for petitioner was heard. When the revision was taken there was no representation for first respondent. 3. The case of the first respondent in the complaint was CRRP2598/08 2 that towards the amount due to first respondent partnership firm by name Home Shine Hire Purchase Company, petitioner issued Ext.P1 cheque drawn in his account maintained in Varapuzha Service Co-operative Bank for Rs.1,30,000/- on 27.1.2005 at Adimaly and when the cheque was presented for encashment through the account of the firm with State Bank of Travancore, Kaloor branch, it was dishonoured for want of sufficient funds under Ext.P4 dishonour memo and it was intimated to the first respondent. Under Ext.P3, first respondent demanded the amount covered by Ext.P2 cheque, by Ext.P5 notice. Ext.P6 original notice, sent by registered post, was returned unclaimed and petitioner did not pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. 4. Eventhough the complaint was filed by Abdul Latheef on the strength of Ext.D1 power of attorney executed in his favour by the managing partner of the first respondent firm, subsequently PW1 was authorised by the firm under Ext.P1 power of attorney. On the strength of Ext.P1, PW1 was examined on behalf of first respondent. The chief examination of PW1 shows that Ext.P2 cheque was issued by the petitioner to CRRP2598/08 3 first respondent company at Adimaly. Case of the petitioner was that no amount was due to the firm and petitioner did not issue the cheque. In such circumstances it is for the first respondent to prove that Ext.P2 cheque was issued by petitioner and that too for discharge of existing liability. In cross-examination PW1 admitted that he was not present at the time when the cheque was allegedly entrusted by the petitioner to the first respondent. What was deposed by PW1 was that it was entrusted to Abdul Latheef who was the original Manager who lodged the complaint on the strength of Ext.D1 power of attorney on behalf of the first respondent firm. Learned Magistrate and the learned Sessions Judge relying on the evidence of PW1 rejected the case of the petitioner that there is no evidence to prove that Ext.P2 cheque was issued towards the discharge of an existing liability. Both the Courts relied on the presumption available under Section 139 of Negotiable Instruments Act. As rightly argued by learned counsel appearing for petitioner the presumption available under Section 139 could be invoked only on proof of execution of the cheque. Eventhough petitioner specifically contended that he had not issued any cheque, there is no acceptable evidence to prove the issuance of the cheque. Evidence of PW1 does not CRRP2598/08 4 establish that Ext.P1 cheque was executed or entrusted by the petitioner to the first respondent. Though it was contended that it was entrusted to Abdul Latheef, he was not examined. Evidence of PW1 does not prove execution of Ext.P2. Therefore there is no evidence to prove the execution of Ext.P2 cheque. Therefore in the absence of evidence that Ext.P2 cheque was executed and issued to the first respondent firm by the petitioner, presumption available under 139 could not have been drawn by the Courts below. 5. Though it is stated in the complaint that Ext.P2 cheque was issued towards discharge of the outstanding liability, what was the liability was not specifically pleaded in the complaint. When PW1 was examined, neither in his proof affidavit nor at the time of cross-examination PW1 has disclosed the details of the alleged liability. It was contended that there was a hire purchase transaction between the petitioner and first respondent firm. But, if that be the case, the records of the firm establishing the hire purchase transaction could have been produced and it could have been established that there was an existing liability for the discharge of which Ext.P2 cheque was issued. In the absence of any evidence, it cannot be said that CRRP2598/08 5 Ext.P2 cheque was issued by the petitioner towards the discharge of an existing liability. Unfortunately, this material and relevant aspect was not taken note of by the Courts below. It is seen from the judgment of the first Appellate Court that even before the Appellate Court the first respondent did not appear. On the evidence on records it is not possible to hold that Ext.P2 cheque was issued by the petitioner towards discharge of an existing liability. Therefore conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is illegal and is set aside. Petitioner is acquitted. M. SASIDHARAN NAMBIAR, JUDGE Okb/-