IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 Crl.Rev.Pet.No. 277 of 2008(D) ------------------------------------------ CRA.263/2006 of II ADDL. SESSIONS COURT, PALAKKAD STC.2433/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT,OTTAPPALAM .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- P. VASU, S/O.KORAN, PATHIRATH VEED, KADAVANAD P.O., PONNANI, MALAPPURAM DISTRICT. BY ADV. MR.T.SETHUMADHAVAN MR.PUSHPARAJAN KODOTH MR.K.JAYESH MOHANKUMAR RESPONDENT/RESPONDENT/COMPLAINANT & STATE ------------------------------------------------------------------------------ 1. A.V. KRISHNAKUMAR, S/O.NARAYANAN, AMBADI VALAPPIL VEED, CHUDUVALATHUR, SHORNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.P.RAVEENDRA BABU. R1 BY ADV. MR.P.CHANDRASEKHAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.277 of 2008 -------------------------- ORDER Revision Petitioner is the accused and first respondent, the complainant in S.T.No.2433/2003 on the file of Judicial First Class Magistrate's Court, Ottapalam. First respondent lodged a complaint alleging that towards repayment of a loan, petitioner issued Exhibit P1 cheque dated 19.7.2002, drawn in his account maintained in Quasi Government Employees' Co-operative Credit Society, Ponnani Branch and when the cheque was presented for encashment on 12.8.2002, it was dishonoured. First respondent approached the petitioner and then he requested first respondent to present the cheque after four months stating that at that time, there would be sufficient amount in the account and later, when the cheque was presented for encashment through his account in State Bank of India, it was dishonoured on 4.1.2003 under Exhibit P2 memo and CRRP 277/08 2 it was intimated to the first respondent under Exhibit P3. First respondent sent Exhibit P5 notice (Exhibit P4 being its copy). But, it was returned unclaimed. Alleging that petitioner thereby committed offence under Section 138 of Negotiable Instruments Act, complaint was filed. 2. Learned Magistrate took cognizance of the offence and issued summons to the petitioner. Petitioner resisted the case contending that he has no acquaintance with the first respondent and he did not borrow any amount from the first respondent and did not issue Exhibit P1 cheque. It was also contended that Exhibit P1 cheque was not issued to him from the Bank in his account and only one cheque was issued in that account, which was Cheque No.432. Petitioner has a case that he was a surety to Uthup, the earlier President of the Society, who had availed of a loan and it is for that purpose Cheque No.432 was obtained in his account and entrusted to him and later, he realised that cheque CRRP 277/08 3 leaves 281 to 290 were obtained from the Bank by the President Uthup and misusing one of those cheques, another complaint was filed by one P.V.John before Magistrate's Court, Kottayam and Uthup had filed a suit based on a forged promissory note claiming Rs.3,50,000/- and as petitioner is not liable to pay any amount and no cheque was issued to the first respondent, he did not commit any offence. 3. Learned Magistrate, on the evidence of first respondent as PW1 and the Secretary of the Bank as DW1 and a Head Constable, who had registered the FIR, based on Exhibit D3 private complaint filed by the petitioner against Uthup, first respondent as well as the other complainant P.V.John and Exhibits P1 to P6 and D1 to D3, found the petitioner guilty of the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to simple imprisonment for six months and to pay compensation of Rs.1,50,000/- and in default, CRRP 277/08 4 simple imprisonment for two months. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.No.263/2006. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 4. Learned counsel appearing for the revision petitioner and first respondent were heard. 5. Learned counsel appearing for the petitioner pointed out that failure of first respondent to disclose the details of the original transaction or the improbability in his evidence was not properly appreciated either by the Magistrate or by the Sessions Judge. It was argued that appreciation of evidence was perverse as material aspects were either not appreciated, over looked or not properly appreciated. Learned counsel also pointed out that in spite of the specific case of the petitioner that he had no acquaintance with the first CRRP 277/08 5 respondent and had not borrowed any amount and there was no liability to be discharged, evidence was not properly appreciated on this aspect. It was pointed out that as per the evidence of first respondent as PW1, he started a manufacturing business in 2000, after obtaining a bank loan of Rs.1,50,000/-. According to PW1, that loan was obtained by his father for him and the amount was utilised by him for his manufacturing business and the loan was cleared only in 2003 and that too, by sale of his residential property. It is pointed out that it is such a person, who claims that he had granted a loan of Rs.1,50,000/- to the petitioner without getting any scrap of paper acknowledging the receipt or promise to repay and that too, during the same period. It was argued that this improbability was not properly appreciated by the courts below. Learned counsel also pointed out that though Section 139 of Negotiable Instruments Act enables the court to draw a presumption, it is CRRP 277/08 6 available only on establishing execution of the dishonoured cheque and from the evidence of first respondent, execution of the cheque is not established and when there is no liability to be discharged, petitioner is not expected to issue a cheque as claimed and therefore, findings of the courts below are unsustainable. Learned counsel also pointed out that evidence of DW1, the Secretary of the Society, that Exhibit P6, the original ledger, establishes that petitioner was issued only Cheque No.432 in his account and not the dishonoured cheque and therefore, courts below were not justified in convicting the petitioner for the offence under Section 138 of Negotiable Instruments Act, when Exhibit P1 cheque was not issued by the petitioner and that too in the account maintained by him. 6. Learned counsel appearing for the first respondent argued that evidence of PW1 establishes that petitioner obtained a loan of Rs.1,50,000/- CRRP 277/08 7 and towards its repayment, Exhibit P1 cheque was issued and it was dishonoured. It was pointed out that complaint itself shows that towards discharge of the liability, Exhibit P1 cheque was issued and the cheque was dishonoured and learned Magistrate and learned Sessions Judge, for valid reasons, disbelieved the evidence of DW1 and there is no reason to interfere with the appreciation of evidence or the concurrent conviction, in exercise of the revisional powers. It was pointed out that Exhibit P2 dishonour memo does not show that Exhibit P1 cheque was dishonoured for the reason that it was not a cheque issued to the petitioner by the Bank in the account maintained by him, but, only for the reason that there was insufficient fund in the account and based on the evidence of DW1, petitioner is not entitled to contend that Exhibit P1 cheque was not issued in the account maintained by him. It was argued that Exhibit D3 complaint was subsequently filed just to escape CRRP 277/08 8 from the liability in this case as well as the case instituted by Uthup and John and based on Exhibit D3 complaint, conviction cannot be set aside. 7. True, ordinarily, evidence is not to be re- appreciated in exercise of the revisional powers. But, if it is found that appreciation of evidence was perverse or material evidence was overlooked by the courts below, this Court, in exercise of the revisional powers, is competent to and is bound to re-appreciate the evidence. It was the specific case of the petitioner before learned Magistrate that he had no acquaintance with the first respondent and did not obtain any loan from the first respondent and also did not issue the dishonoured cheque. In such circumstances, courts below should have been more vigilant while appreciating the evidence. The complaint does not disclose what was the liability to be discharged, for which Exhibit P1 cheque was issued. At the time of evidence, first respondent, as PW1, deposed that CRRP 277/08 9 petitioner had borrowed Rs.1,50,000/- and towards its repayment, Exhibit P1 cheque was issued. When the very factum of the dishonoured cheque as well as even the acquaintance was disputed by the petitioner, evidence of PW1 should have been minutely appreciated. Evidence of PW1 shows that he started a manufacturing business in 2000. According to PW1 himself, he started the business by availing a loan of Rs.1,50,000/- from the Urban Bank. In cross-examination, PW1 deposed that loan was not obtained by him, but by his father and the amount was given to him. If that be the case, first respondent was not in an affluent situation to grant a loan of Rs.1,50,000/- to a person, who, even according to the first respondent, is only a friend of the husband of the sister of the mother of the first respondent. According to PW1, a loan of Rs.1,50,000/- was obtained by the petitioner in September 2000. CRRP 277/08 10 8. The question is whether granting of such a loan is probable. Though it is impossible, in the ordinary conduct of human nature, when a person, who had availed a loan of Rs.1,50,000/- for starting a manufacturing business, will not grant a loan of Rs.1,50,000/- to the petitioner and that too, without obtaining any scrap of paper, either promising to repay the amount or acknowledging receipt of the loan. This aspect was ignored by the courts below. If we are to believe the evidence of PW1, within three months, first respondent approached the petitioner for getting repayment of the loan. If that be so, it should be in December 2000. According to PW1, though he approached the petitioner at his house, the amount was not paid. He again went to PW1 for the second time. At that time also, the amount was not paid. If we are to believe PW1, when he approached the petitioner at his house for the third time, Exhibit P1 cheque was issued. The very look of Exhibit P1 cheque shows CRRP 277/08 11 that it was prepared by filling up the details with a typewriter. According to PW1, petitioner signed in Exhibit P1 cheque and handed it over to him. If petitioner did not pay on two occasions and when PW1 went to his house for the third time, the cheque was prepared to be handed over to the first respondent, one would naturally expect presentation of the cheque to the Bank for encashment immediately. It is more so, when the cheque was received after four months and when, even according to the first respondent, he was having an outstanding liability of Rs.1,50,000/- at that time. Evidence of PW1 establishes that to discharge the liability even his residential property was to be sold. Still, as per the complaint, cheque was presented only in August and when it was dishonoured, first respondent approached the petitioner and on the promise that there would be amount within four months, first respondent did not take any steps. This is not the conduct of an CRRP 277/08 12 ordinary human being, when petitioner did not repay the amount as agreed and that too was paid by him out of a loan obtained for the business of the first respondent. If these aspects were appreciated in the proper perspective, courts below could not have believed the case of the first respondent that Exhibit P1 cheque was issued towards discharge of an existing liability. 8. Added to this, Exhibit P6 ledger of the Bank shows that in Account No.146, which relates to the account maintained by the petitioner, only one cheque (Cheque No.432) was issued. Even if, while dishonouring Exhibit P1 cheque under Exhibit P2 memo, the fact that the said cheque was not issued in the account was not mentioned, on the facts and circumstances of the case, courts below were not justified in ignoring the evidence of DW1. Even if it is taken that petitioner did not establish that only Cheque No.432 was issued in that account, it is to be borne in mind that an offence under CRRP 277/08 13 Section 138 is attracted only if it is proved that Exhibit P1 is a cheque issued to the petitioner in his account. When that fact is denied by the petitioner, it is for the first respondent to prove it. When there is no evidence on the side of first respondent to prove that it is a cheque issued to the petitioner in that account, evidence of DW1, corroborated by Exhibit P6, is to the contrary. Petitioner cannot be convicted for the offence under Section 138 of Negotiable Instruments Act for the unsatisfactory or insufficient evidence adduced on his side, when evidence of first respondent is insufficient to prove the offence. As courts below did not appreciate the evidence and appreciation of evidence is perverse and on proper appreciation of evidence, commission of offence is not proved, conviction of the petitioner for offence under Section 138 of Negotiable Instruments Act can only be set aside. CRRP 277/08 14 Revision is allowed. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act by the Magistrate and Sessions Judge is set aside. Petitioner is found not guilty of the offence and is acquitted. 3rd August, 2009 (M.Sasidharan Nambiar, Judge) tkv