IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.Rev.Pet.No. 684 of 2007(A) ------------------------------ CRA.761/2005 of ADDL. SESSIONS COURT (ADHOC)-I, ALAPPUZHA ST.1079/2004 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- ABRAHAM THOMAS @ PAPPACHAN, MOONNUTHAICKAL ERUPATHARAIL, EDATHUA (P.O), KUTTANAD TALUK. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.M.SUNILKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. JINNU GEORGE KOOTTAKARA, ANCHIL, PACHA, CHEKKIDIKADAVU (P.O), EDATHUA, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K SRI.S.SANAL KUMAR FOR R1 SMT.BHAVANA VELAYUDHAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/02/2009, ALONG WITH CRRP NO. 694 OF 2007 CRRP NO.403 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 684,694 & 403 OF 2007 =========================== Dated this the 3rd day of February,2009 ORDER Revision petitioner is the same who is the accused before the Judicial First Class Magistrate, Ambalapuzha. First respondent in each of the revisions are the complainants. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act in all the case by separate judgments. The conviction was confirmed in appeals. Crl.R.P.403/2007 is filed challenging the conviction in S.T.1267/2004 as confirmed by Additional Sessions Judge, Alappuzha in Crl.A.762/2005. Crl.R.P.684/2007 was filed challenging the conviction in S.T.1079/2004 as confirmed in Crl.A.761/2005. Crl.R.P.694/2007 is filed challenging the conviction in S.T.1076/2004 as confirmed in Crl.A.763/2005. CRRP 684,694 & 403 of 2007 2 In S.T.1267/2004 first respondent contended that towards repayment of Rs.1,00,000/- borrowed by the revision petitioner, he issued Ext.P1 cheque for Rs.1,00,000/- dated 12.2.2004. In S.T.1079/2004 first respondent in Crl.R.P.684/2007 contended that towards repayment of Rs.75,000/- borrowed by revision petitioner on 18.2.2003, revision petitioner issued Ext.P1 cheque therein dated 10.1.2004 for Rs.75,000/-. In S.T.1076/2004, first respondent in Crl.R.P.694/2007 contended that revision petitioner borrowed Rs.75,000/- on 20.2.2003 promising to repay the same on 20.7.2003 and towards its repayment issued Ext.P1 cheque therein dated 10.1.2004 for Rs.75,000/-. Admittedly all the cheques, when presented for encashment were dishonoured for want of sufficient funds. First respondent in each of the cases demanded the amount covered by the dishonoured cheque by issuing notice under registered post through the same counsel which were returned CRRP 684,694 & 403 of 2007 3 unclaimed and the complaint was filed thereafter alleging that revision petitioner committed offence under section 138 of Negotiable Instruments Act in each case. Learned Magistrate relying on the evidence of complainant as PW1 in each of the cases, convicted the revision petitioner for the offence under section 138 of Negotiable Instruments Act rejecting the case of the revision petitioner that the dishonoured cheques were not issued towards repayment of any debt or liability. It was the common case of revision petitioner in all the cases that revision petitioner as well as first respondent in Crl.R.P.684/2007 and Crl.R.P.694/2007 and the son of the first respondent in Crl.R.P.403/2007 and similar ten other persons had paid money to one Sunil for arranging visa and though Sunil received the amount, he did not arrange the visa and ultimately all other persons proceeded against the revision petitioner and he was brought to the Police Station CRRP 684,694 & 403 of 2007 4 and from the Police Station cheques were forcibly obtained and the dishonoured cheques in these cases and similar cases are the cheques so obtained from the Police Station and therefore he is not liable to be convicted for the offence under section 138 of Negotiable Instruments Act. Learned Magistrate in each of the cases believed the case of the complainant as PW1 and convicted revision petitioner. Learned Additional Sessions Judge on reappreciation of evidence confirmed the findings of the learned Magistrate and confirmed the conviction. Revisions are filed challenging the conviction. 2. Learned counsel appearing for the revision petitioner and learned counsel appearing for first respondent were heard. 3. As the defence was common all the revision petitions were heard together and is disposed by this common judgment. 4. Learned counsel appearing for the revision CRRP 684,694 & 403 of 2007 5 petitioner produced the judgment of Judicial First Class Magistrate, Ambalapuzha in C.C.359/2004 as per Crl.M.Appl.923/2009 in Crl.R.P.403/2007 and submitted that revision petitioner along with Sunil were charged for the offence under section 420 and 471 read with section 34 of IPC and first respondent in Crl.R.P. 684 and 694 of 2007 were examined as Pws. 2 and 5 in C.C.359/2004 and the son of the revision petitioner in Crl.R.P.403/2007 was examined as PW7 and the learned Magistrate on the evidence acquitted the revision petitioner finding that revision petitioner also entrusted money to the first accused Sunil. It was argued that the said judgment along with the evidence of PW1 in the respective cases establish that the respective dishonoured cheques were not issued towards repayment of any debt or liability and therefore the conviction is not sustainable. 5. Learned counsel appearing for first respondent, though directed to explain the CRRP 684,694 & 403 of 2007 6 consequence of the judgment of the learned Magistrate in C.C.359/2004, submitted that the respective first respondent could not be contacted. 6. On going through the evidence in the respective cases and the judgments of the courts below, it is absolutely clear that courts below did not properly appreciate the evidence. The evidence of PW1 in the respective cases establish that they are not telling the truth. What was stated by first respondent in the respective notice sent under section 138(b) of Negotiable Instruments Act as well as in the respective complaint filed before the Magistrate and asserted in chief examination was that revision petitioner borrowed Rs.1,00,000/- in S.T.1267/2007, Rs.75,000/- each in S.T.1079/2004 and 1076/2004 and towards the repayment of that amount when demanded, on the failure to repay the same on the agreed date, issued the respective dishonoured cheques. But respective first respondent when examined in CRRP 684,694 & 403 of 2007 7 S.T.1076/2004 and 1079/2004 as PW1 admitted the visa transaction and claimed that cheques were issued in respect of a different transaction and that too towards repayment of Rs.75,000/- each borrowed by the revision petitioner. But from the evidence of PW1 in the respective cases it is absolutely clear that they could not have granted a loan of Rs.75,000/- each to first respondent, when their evidence establish that they were not financially sound to grant such a loan and that too on a promise made by the revision petitioner to repay the same after months and that too without any interest. Unfortunately this aspect was not properly appreciated by the courts below. Added to this, fact that they were prosecution witnesses in which revision petitioner along with Sunil were prosecuted for cheating, on the allegation that they received money for arranging visa and cheated first respondent in each of the cases their case about a loan cannot be believed. If first CRRP 684,694 & 403 of 2007 8 respondent as well as Sunil allegedly received money for arranging visa, there would not have been a grant of loan of Rs.75,000/- each as stated in S.T.1076/2004 and 1079/2004. It is clear from the evidence of respective first respondent that even for arranging visa they had sold their means of livelihood raised the money. It is they who claim that loan was granted. Such persons cannot be expected to grant a loan to first respondent, especially when their case is that he along with Sunil he received the amount for arranging visa. When all these facts are appreciated, it is absolutely clear that Ext.P1, the respective dishonoured cheque in S.T.1076/2004 and 1079/2004 was not issued by the revision petitioner towards repayment of any debt or liability. It could only be procured by first respondent as claimed by the revision petitioner. Therefore conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act in S.T.1076/2004 CRRP 684,694 & 403 of 2007 9 and 1079/2004 is not sustainable. 7. Though first respondent in Crl.R.P.403/2007 has not paid an amount for arranging visa, his evidence as PW1 along with the judgment in C.C.359/2004 produced by the revision petitioner establish that case of the first respondent believed by the courts below should not have been believed, in the light of the evidence on record. Evidence of first respondent is also that revision petitioner borrowed Rs.1,00,000/- agreeing to repay the same on 12.2.2004 and the amount was borrowed on 16.7.2003. It is the case of the first respondent that towards repayment of that amount Ext.P1 cheque dated 12.2.2004 was issued. From the evidence of PW1 it is absolutely clear that first respondent would not have been granted a loan of Rs.1,00,000/- to the revision petitioner, especially when the son of the revision petitioner had a transaction for arranging visa with Sunil. Unfortunately the evidence was not properly CRRP 684,694 & 403 of 2007 10 appreciated by the courts below. The judgment in C.C.359/2004 establish that it was the case of the son of the revision petitioner that Rs.50,000/- was received by the revision petitioner and was handed over to Sunil for the purpose of arranging visa. If that case is true, first respondent would not have granted a loan of Rs.1,00,000/- that too with an agreement to repay the same after seven months to the revision petitioner and without getting any record evidencing the payment. From the entire evidence, it can only be found that Ext.P1 dishonoured cheque was not issued by the revision petitioner as claimed by the first respondent towards the repayment of any amount borrowed. The cheque could have been procured by first respondent in the visa transaction as claimed by revision petitioner. Though the defence has not been conclusively proved, facts brought out in cross examination of PW1 with the judgment inC.C.359/2004 probablise the case put forth by the CRRP 684,694 & 403 of 2007 11 revision petitioner which is sufficient to rebut the presumption available under section 139 of Negotiable Instruments Act. As the evidence of PW1 in each of the case is insufficient to prove that revision petitioner had borrowed Rs.1,00,000/- as claimed by him, Ext.P1 cheque it can only be found that it was not issued towards repayment of the loan. In such circumstance, conviction of the revision petitioner in S.T.1267/2004,1076/2004 & 1079/2004 by the Judicial First Class Magistrate, Ambalapuzha as confirmed by Additional Sessions Judge, Alappuzha are set aside. Revision petitioner is found not guilty of the offence under section 138 of Negotiable Instruments Act. He is acquitted in all the cases. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006