IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 3411 of 2008() ------------------------------ CRA.257/2006 of ADDL. SESSIONS JUDGE, THRISSUR(FAST TRACK COURT-II, ADHOC) C.C.NO.183/02 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER(S): --------------------- DOMINIC, S/O.VARGHESE, THANNIKKAL HOUSE PO.ATHANI, THRISSUR. BY ADV. SRI.SURAJ.S RESPONDENT(S): --------------- 1. NARAYANAN, S/O.VELAYUDHAN KALLIVALAPPIL POOLAKKAL HOUSE MINALUR DESOM, THALAPPILLY TALUK, THRISSUR 2. STATE REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ----------------------------------------------- CRL.R.P. No.3411 OF 2008 ----------------------------------------------- Dated this the 12th day of December, 2008 ORDER Revision Petitioner is the accused and first respondent the complaint C.C.No.183/2002. Revision Petitioner was convicted for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged it before Additional Sessions Judge, Thrissur in Crl.A.No.257/2006. Learned Sessions Judge remanded the case to the Magistrate. It is challenged in the revision. Though notice was served on the first respondent, he did not here. 2. The learned counsel appearing for the revision petitioner was heard. Revision petitioner was convicted by the Judicial First Class Magistrate Wadakkanchery for the offence punishable under section 138 of Negotiable Instruments Act finding that Ext.P1 cheque was issued by the revision petitioner towards repayment of the amount borrowed earlier. In the appeal, learned Sessions Judge CRRP.NO.3411/08 2 reappreciate the evidence and found that the evidence is insufficient to confirm the findings of the learned Magistrate. But for the reason that, revision petitioner had produced additional documents relating to the connected civil suit, learned Sessions Judge remanded the case to the Magistrate to afford an opportunity to the revision petitioner to adduce evidence. The argument of the learned counsel is that, when it is for the first respondent to establish that Ext.P1 cheque was issued by the revision petitioner towards discharge of legally enforceable debt or liability and evidence is found to be insufficient, there was no necessity to remand the case to afford an opportunity to the revision petitioner to adduce evidence and therefore the order is unsustainable. The learned counsel pointed out that, first respondent admitted, at the time of his examination as PW1 that, O.S.No.66/2002 was instituted by him and it was for recovery of Rs.36,750/- from first respondent and it is the same amount covered by Ext.P1 cheque. The learned CRRP.NO.3411/08 3 counsel pointed out that, the civil suit which was filed based on the same cheque was dismissed and though PW1 stated that, civil suit is based on an agreement, the plaint of that suit lay on the appellate court disproves that case. On going through the judgment of the learned Sessions Judge and the submissions of the learned counsel , I find the submission of the learned counsel fully justifiable. When a complaint is filed on the allegation that revision petitioner committed an offence under section 138 of the Negotiable Instruments Act, it is for the first respondent to prove that, Ext.P1 cheque was issued towards discharge of a legally enforceable debt or liability. True, when execution of the cheque is admitted or proved presumption under section 139 of the Negotiable Instruments Act would enable the complainant to adduce further offence, unless the initial presumption is rebutted by the accused. But when as found by the learned Sessions Judge, the cheque was admittedly written by the first respondent himself and not by revision CRRP.NO.3411/08 4 petitioner and he only claims that it was written by him as instructed by the first respondent and on appreciation of evidence, learned Sessions Judge was not satisfied with the capacity of PW1 to grant loan and also the factum of granting of loan, learned Sessions Judge should not have remanded the case and that too, to enable the revision petitioner to adduce further evidence. When PW1 admitted that, O.S.No.66/2002 was instituted by him for realisation of the same amount covered in Ext.P1 cheque and that suit was dismissed for non prosecution, the learned Sessions Judge without considering what was the judgment in that suit and what was the claim raised by the respondent in that suit and the effect of dismissal of the said suit was not justified in remanding the case. The learned Sessions Judge remanded the case to lower court when there is no case for first respondent that he did not get opportunity to adduce evidence. In such circumstances, the order of remand can only be setaside. CRRP.NO.3411/08 5 Revision allowed. Order of remand set aside. CrlA.No.257/2008 remanded to the Additional Sessions Judge, Trissur (Fast Track Court No.II, Adhoc) for fresh disposal in accordance with law. Revision petitioner is directed to appear before the Sessions court on 20.1.2009. Send back to reflects immediately. (M.SASIDHARAN NAMBIAR, JUDGE) sks/-