IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 295 OF 2007() ----------------------------- CRA.762/2005 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.2211/2001 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- GEORGE AYATHUMPARAMBIL, MANAGING PARTNER, MOUNTAIN ROAD, THYKOODAM, VYTTILA, KOCHI-19. BY ADV. SRI.M.R.RAJENDRAN NAIR (SR.) SRI.M.R.SUDHEENDRAN RESPONDENT(S)/RESPONDENT/ COMPLAINANT & STATE: -------------------------- 1. LATHAMBIKA CHAITHANAY, M.K.K.NAIR NAGAR, TRIPPUNITHURA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.P.UDAYABHANU FOR R1 PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 295 OF 2007 ------------------------------------------ Dated this the 13th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.2211 of 2001 on the file of Chief Judicial Magistrate, Ernakulam. Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Crl.Appeal 762 of 2005 filed before Sessions Court, Ernakulam was dismissed confirming the conviction and sentence. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and first respondent were heard. 3. Learned counsel appearing for revision petitioner argued that revision petitioner had contended that he did not borrow any amount from the revision petitioner and Ext.P1 cheque was a blank cheque issued to the husband of the revision petitioner when amount was borrowed and that amount was repaid and later the husband of the first respondent died and first respondent obtained the blank cheque and filled up and presented the same and the complaint was lodged. It was CRRP295/2007 2 argued that when first respondent was examined, in cross- examination PW1 deposed that when revision petitioner asked for a loan of Rs.3,00,000/- she had no money and she had bid a chitty as she was a subscriber to Viswas Chit Funds and after receiving the chitty amount she deposited that amount in Federal Bank and that amount was withdrawn and paid to the revision petitioner and in spite of a petition filed to produce the record first respondent did not produce the same and when the evidence was closed without that document, revision petitioner had filed M.P.3861 of 2005 under section 311 of Code of Criminal Procedure for a direction to produce that document and the said petition was dismissed as belated and learned Magistrate should have allowed that application and when the material document available with the revision petitioner was not produced, learned Magistrate should not have convicted the petitioner. Learned counsel appearing for first respondent argued that there is no reason to interfere with the conviction and Courts below rightly appreciated the evidence. 4. On going through the judgment of Courts below and on the facts and circumstances in this case I find that the learned Magistrate was not justified in not directing first CRRP295/2007 3 respondent to produce the passbook which according to the first respondent should show the deposit of Rs.3,00,000/- which was obtained by first respondent after bidding the chitty in Viswas Chit Funds. That is the most relevant evidence which would establish that revision petitioner had borrowed the amount as claimed by the first respondent or not. Learned counsel appearing for petitioner submitted that if the document is produced and it is proved that first respondent had bid the chitty and deposited the amount in Federal Bank and that amount was withdrawn and given to the revision petitioner, the conviction could be upheld and if the Bank records do not establish that there was a deposit or withdrawal as claimed by first respondent case should necessarily be disbelieved. Eventhough there is a presumption under section 139 of N.I. Act, the presumption could be invoked only on proving execution of the cheque. It is for the first respondent to prove that Ext.P1 cheque was issued towards payment of a legally recoverable debt and that Rs.2,60,000/- as claimed by her was paid to the revision petitioner. As the case of the first respondent is that the amount was received by bidding the chitty and it was deposited in her account in Federal Bank and the same was withdrawn, an CRRP295/2007 4 opportunity is to be given to first respondent to produce the same and to prove the payment. Revision is allowed. The conviction and sentence is set aside. C.C.2211 of 2001 is remanded to Additional Chief Judicial Magistrate, Ernakulam. Learned Magistrate is directed to dispose the case after directing first respondent/complainant to produce the pass book or if pass book is not available, the ledger extract of her account maintained in Federal Bank, which according to first respondent should show the deposit of Rs.3,00,000/- being the amount received from Viswas Chit Funds. First respondent is also permitted to adduce any other evidence to prove the receipt of the money which was available with her to be paid to revision petitioner. Parties are directed to appear before Additional Chief Judicial Magistrate on 10.12.2008. Send Back the records. M. SASIDHARAN NAMBIAR, JUDGE Okb/-