IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 Crl.Rev.Pet.No. 37 of 2002(T) ----------------------------------------------- CRA.240/2000 of ADDL. SESSIONS COURT, ALAPPUZHA CC.119/1998 of JFCM, RAMANKARY .............. REVN. PETITIONER/ACCUSED/APPELLANT: ANNAMMA VARGHESE, POOPALLIYIL HOUSE, CHUNGOM, ALAPPUZHA. BY ADV. SRI.B.RAMAN PILLAI RESPONDENTS/RESPONDENTS/COMPLAINANT: 1. JOSEPH JOSEPH, S/O. JOSEPH, PALLIPPARAMBIL, PALACE WARD, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.V.MATHEW FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.251/2002 IN CRRP 37/2002 DISMISSED 7.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.37 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.119/1998 on the file of Judicial First Class Magistrate's Court, Ramankary, was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. Petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.No.240/2000. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. The case of the first respondent in the complaint was that petitioner, a lady, borrowed Rupees Two lakhs from him and towards its payment, issued Exhibit P1 cheque drawn in her account maintained in Alappuzha Branch of Indian Overseas Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and when demand was made under Exhibit P4 notice, petitioner sent a false reply and did not pay the amount and she, thereby, committed CRRP 37/02 2 the offence. 3. Petitioner resisted the case contending that she did not borrow any amount and did not owe any amount to the first respondent and did not issue Exhibit P1 cheque towards any debt or liability. It is contended that Hassan Koya, an employee of the petitioner, had stolen cheque leaves, including the dishonoured cheque and making use of one of the cheque leaves, Exhibit P1 was presented for encashment and petitioner had intimated the Bank not to honour the stolen cheques and she did not commit any offence. 4. First respondent was examined as PW1 and an eye witness to the transaction was examined as PW4. In addition, PWs 2 and 3, the Officers of the Bank, were examined and Exhibits P1 to P12 were marked. On the side of the petitioner, seven witnesses, including the employee Hassan Koya, were examined and Exhibits D1 to D3 were marked. 5. Learned Magistrate, on the evidence, found the petitioner guilty and convicted and sentenced her. Learned Additional Sessions Judge, on re-appreciation of the evidence, confirmed the conviction and sentence. This revision is filed contending that courts below CRRP 37/02 3 should not have believed the evidence of PWs 1 and 4 and should have found that Exhibit P1 cheque was not issued to the first respondent and it was actually stolen from the petitioner by DW7 and handed over to the first respondent and therefore, the conviction is unsustainable. 6. Before this Court, petitioner produced three documents vide Crl.M.Appl.No.5058/2010. First document is the copy of the final report submitted by the Deputy Superintendent of Police, CBCID, Alappuzha in Crime No. 45/1996, re-registered as 124/CR/KLM/96 of CBCID, of the FIR marked Exhibit D4 before the learned Magistrate. Second document is the copy of the charge framed by Judicial First Class Magistrate-I, Alappuzha in C.C.No.327/2007, the case taken cognizance on that final report. Third accused therein is the first respondent in this case. Third document is the copy of the stop memo issued by the petitioner intimating the Bank that cheque leaves were stolen from her and as there is every chance for misusing those cheques, no cheque shall be honoured. 7. Learned senior counsel appearing for the petitioner was heard. Advocate Sri.Biju Martin CRRP 37/02 4 submitted that he has been instructed by the learned counsel appearing for the first respondent that first respondent has not given any further instructions, in spite of several letters sent. 8. Learned Magistrate and learned Additional Sessions Judge accepted the evidence of PWs 1 and 4 and disbelieved the case of the petitioner that cheque leaves, including Exhibit P1 cheque, were stolen by Hassan Koya, her employee. At the time when the evidence was recorded, the case, registered under Exhibit D4 FIR, Crime No.45/1996 was being investigated and the Investigating Officer was examined. The investigation was not complete at that time. From the final report, now produced by the petitioner and the court charge, it is clear that on investigation, it was found that the cheque book, containing several cheque leaves was stolen by Hassan Koya and Exhibit P1 cheque is one among those cheque leaves and first respondent was charged for the offence on the allegation that Exhibit P1 cheque was forged using one of the cheque leaves stolen from the petitioner. The court charge produced by the petitioner establishes that learned Magistrate took cognizance of the offences under CRRP 37/02 5 Sections 408, 381, 467, 468, 471 and 120B read with Section 34 of Indian Penal Code against Hassan Koya and first respondent as also the complainants in all other cases, which were also instituted based on the stolen cheques. In such circumstances, the evidence is to be evaluated in detail. 9. The case of the first respondent is that petitioner borrowed Rupees Two lakhs and issued Exhibit P1 cheque dated 1.9.1995. The complaint does not show that Exhibit P1 cheque was issued, on the date of borrowal itself. The allegations in paragraph one of the complaint are that petitioner and first respondent are having acquaintance and towards repayment of the amount of Rupees Two lakhs borrowed, petitioner issued Exhibit P1 cheque after putting the date 1.9.1995. When exactly the amount was borrowed is not mentioned. On the other hand, on a reading of paragraph one of the complaint, it may appear that the amount was borrowed earlier. Whatever it be, evidence of first respondent, as PW1, is that on 1.9.1995, petitioner came to his house and received Rupees Two lakhs and towards repayment of that amount, issued a cheque drawn in her account maintained in Alappuzha Branch of Indian CRRP 37/02 6 Overseas Bank with date 1.9.1995. Chief examination of PW1 does not disclose presence of any witness. In cross-examination, he deposed that petitioner asked for the amount some days earlier and therefore, he had kept the amount in cash and on the morning, while he was talking with two of his friends, petitioner came there and asked whether money is ready and the amount was paid. In further cross-examination, PW1 named Rafeek, who is a complainant in another cheque case, which, subsequently, ended in acquittal, though an appeal is pending before this Court. According to PW1, petitioner, in his presence, disclosed to the said Rafeek that amount of Rupees Two lakhs borrowed earlier is not ready and she wants some more time because of his bad financial position and requested Rafeek not to present the cheque immediately. It is also deposed by PW1 that PW4, an employee, was also there at that time. Though Rafeek was cited as a witness, he was not examined. As is clear from the evidence of PW4, Rafeek was present in court even on the day when PW4 was examined. Even though PW1 deposed that apart from Rafeek, one of his friends was also present, he was not even cited as a witness, much less, examined. PW1 has CRRP 37/02 7 chosen to examine only his employee. Therefore, there is only the evidence of PWs 1 and 4 to establish the factum of borrowal and issuance of the cheque. The question is, how far it is established. 10. If Rupees Two lakhs was borrowed by the petitioner as stated by PW1, in the ordinary human conduct, first respondent would obtain some document apart from the dishonoured cheque evidencing the payment. It is more so when, even according to PW1, petitioner had obtained a loan of Rupees Two lakhs from Rafeek, his friend and issued a cheque and in the presence of PW1, she disclosed that her financial position is bad and therefore, she cannot pay that amount and requested Rafeek that the cheque need be presented only later. 11. If petitioner was having Rupees Two lakhs in her account, there was no necessity to borrow Rupees Two lakhs. When Exhibit P1 cheque dated 1.9.1995 was issued, it could be encahsed on the same day. Failure to examine Rafeek was not properly appreciated by the courts below. Added to this, if the evidence of PW4 is to be believed, Rafeek was not there at the time of transaction. When PW4 was examined, his previous CRRP 37/02 8 statement in O.S.No.420/1995 on the file of Additional Sub Court, Alappuzha was confronted and marked as Exhibit D9. It is the admitted case that O.S.No. 420/1995 is a suit instituted by the first respondent for realisation of the amount due from the petitioner. Exhibit D9 is the copy of the deposition of PW4 in that suit. In Exhibit D9, PW4 had stated that Rafeek was also present at that time. When this deposition was confronted to PW4, as PW1 had no case in chief examination that Rafeek was present, a question was put in re-examination by the counsel for the first respondent and got an answer extracted from PW4 that he has mistakenly stated that Rafeek was there. Evidence of PW4 that Rafeek was not present at that time, cuts the very root of the case spoken to by PW4. According to PW1, in the presence of PW4, at the time when the amount was paid, petitioner disclosed to Rafeek that she could not pay Rupees Two lakhs borrowed earlier and therefore, the cheque issued may not be presented immediately, PW4 would not have omitted to recollect that. In any event, he would not have stated that Rafeek was not there. Therefore, appreciating the entire evidence, it can only be found that first CRRP 37/02 9 respondent did not succeed in establishing that there was borrowal of Rupees Two lakhs. 12. Though Exhibit P7 judgment in O.S.No.420/1995 was relied on by the courts below, it shows that the suit was decreed based on the evidence recorded therein. Learned Sub Judge had no occasion to consider the final report and the cognizance taken by the learned Magistrate or the charge framed in that case, not only against Hassan Koya, but also against the first respondent herein. In such circumstances, based on the civil court finding alone, it cannot be said that petitioner had borrowed Rupees Two lakhs as claimed by the first respondent. Moreover, Exhibit D1, the extract of the account of the first respondent, proved by the evidence of PW1, establishes that he was not having Rupees Two lakhs with him, to be given to the petitioner. When the entire evidence is appreciated, it is clear that first respondent failed to establish that Exhibit P1 cheque was issued towards discharge of an existing liability and petitioner has succeeded in rebutting the presumption available under Section 139 of Negotiable Instruments Act. The final report submitted by the police and the court charge CRRP 37/02 10 framed against the first respondent supports the defence case that Exhibit P1 cheque was not issued towards discharge of an existing liability, but is one of the stolen cheques. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is not legal and is to be set aside. Revision is allowed. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act by Judicial First Class Magistrate, Ramankary in C.C.No.119/1998, as confirmed by Additional Sessions Judge, Alappuzha in Crl.A.No. 240/2000 is set aside. Petitioner is found not guilty of the offence and she is acquitted. 7th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 37/02 11 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.37 of 2002 -------------------------- ORDER 7th June, 2010