IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 Crl.Rev.Pet.No. 1452 of 2008() --------------------------------------- CRA.650/2002 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.166/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- THAZHATHU VEETTIL DEVI, D/O.RAMAN NAIR,ELLARINHI,KOTTUMUGHAM, SREEKANDAPURAM,TALIPARAMBA TALUK. BY ADV. SRI.C.A.JOSEPH SRI.K.K.MOIDEEN RESPONDENT(S): COMPLAINANT & STATE --------------------------------------------------------------- 1. PUTHIYAVEETTIL KRISHNAN,S/O.KRISHNAN, BUSINESS,AYCHERI,NIDUNGOME P.O., SREEKANDAPURAM, TALIPARAMBA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR ADVS. SRI.K.P.SUDHEER FOR R1 SRI.V.C.MADHAVANKUTTY FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ==================== Crl.R.P. No. 1452 of 2008 ==================== Dated this the 30th day of January, 2009 O R D E R The revision petitioner is the accused and first respondent the complainant in C.C. No. 166 of 2002 on the file of Additional Chief Judicial Magistrate, Thalassery. Revision petitioner was convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act. Though revision petitioner challenged it before Sessions Court, Thalassery in Crl. Appeal No. 650 of 2002 the conviction was confirmed and sentence was modified to imprisonment till rising of court and compensation of Rs. 70,000/-. Revision is filed challenging the conviction and sentence. 2. Learned counsels appearing for revision petitioner and respondent were heard. 3. Learned counsel for the revision petitioner argued that revision petitioner in Ext.P6 reply notice itself raised a contention that she did not issue any cheque and she lost the cheque and first respondent would have obtained the cheque and fabricated her signature and she is not liable to pay any amount and still there is Crl.R.P. No. 1452 of 2008 -2- no evidence to prove that the revision petitioner issued Ext.P1 cheque towards discharge of any debt or liability and in such circumstances the conviction is not sustainable. The learned counsel argued that when the evidence of first respondent as PW1 is insufficient to prove any borrowal or the cheque was issued towards repayment of any amount due finding of the courts below that revision petitioner committed an offence under Section 138 of Negotiable Instruments Act is not sustainable. The learned counsel also argued that even the signature in Ext.P1 cheque is not that of the revision petitioner and courts below should have sent the signature to an expert. The learned counsel appearing for the first respondent argued that evidence of PW1 establishes that Ext.P1 cheque was issued by the revision petitioner towards repayment of the amount borrowed and therefore the conviction is perfectly correct. 4. On going through the judgments of the courts below as well as the evidence on record, it is clear that the evidence was not properly appreciated. In spite of the fact that revision petitioner specifically contended in Ext.P6 reply notice, sent to the first respondent for the demand raised for the amount under the dishonored cheque under Section 138(b) of Negotiable Instruments Crl.R.P. No. 1452 of 2008 -3- Act, unambiguously that her cheque was lost and first respondent might have forged the signature in that cheque and presented before the bank, no evidence was adduced to prove the execution or the signature in the cheque. First respondent when examined as PW1, in chief examination did not depose anything on the execution of the cheque. In cross examination PW1 deposed that the cheque was written and brought by the revision petitioner and signed in his presence and handed it over to him. Even then, PW1 has no case that revision petitioner acknowledged before signing that what was written in Ext.P1 is correct or acknowledged it and signed in Ext.P1. Neither in chief examination nor in cross examination PW1 has a case that Ext.P1 cheque was issued as a post dated cheque. On the other hand if the evidence in chief examination is believed the amount was paid on 20.8.2000 as revision petitioner agreed to repay the amount within one month and thereafter Ext.P1 cheque was issued on 20.9.2000. As per Ext.P4 notice when the amount was borrowed revision petitioner agreed to repay the same and the cheque was issued with date 20.9.2000. Even then there was no case that the cheque was issued at the time when the amount was borrowed. Though because of the statement that cheque was issued with date Crl.R.P. No. 1452 of 2008 -4- 20.9.2000 it can be interpreted that the cheque was given as a post dated cheque, PW1 did not depose that Ext.P1 cheque was issued at the time when the amount was borrowed or at any time prior to the date seen in Ext.P1. 5. If the evidence of PW1 that a written cheque was brought by the revision petitioner and signed in his presence and handed over to him is believed, there should have been a pre-agreement between the revision petitioner and first respondent with regard to the amount and the amount would be repaid on such and such day as otherwise revision petitioner cannot be expected to write a cheque with the amount and the date and bring it to be signed in the presence of the PW1 as deposed by him. Unfortunately, these aspects were not considered by the courts below. Similarly, in cross examination PW1 deposed that he had borrowed Rs. 15,000/- from a bank for his business with liability to pay interest. It is such a person who is claiming that Rs. 70,000/- was granted as loan to the revision petitioner and that too without liability for the payment of interest. Unfortunately this aspect was also not taken into consideration by the courts below or even by the counsel appearing for the revision petitioner while cross examining PW1. The learned counsel appearing for the first respondent, at this stage, submitted Crl.R.P. No. 1452 of 2008 -5- that as the revision petitioner is seeking a remand, the case may be remanded to the trial court granting opportunity to both the parties to adduce further evidence. As the courts below did not consider these relevant and material aspects, in the interest of justice a further opportunity is to be granted to both the parties to adduce evidence in support of their case. Hence revision is allowed. The conviction of revision petitioner in C.C. No. 166/2002 as confirmed in Crl. Appeal No. 650/2002 is set aside. The case is remanded to Additional Chief Judicial Magistrate for fresh disposal in accordance with law after affording opportunity to both the complainant and the accused to adduce further evidence. It is made clear that the Magistrate is competent to forward Ext.P1 cheque to an expert, if it is found necessary and dismissal of the petition filed earlier by the accused will not be a bar for exercising that power. Parties are directed to appear before Additional Chief Judicial Magistrate Thalassery on 26.2.2009. Send back the records immediately. M.SASIDHARAN NAMBIAR JUDGE rhs