IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU TUESDAY, THE 18TH SEPTEMBER 2007 / 27TH BHADRA 1929 Crl.Rev.Pet.No. 913 of 2000() ----------------------------- CRA.170/1999 of SESSIONS COURT, THRISSUR ST.2798/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... REVN. PETITIONER: ------------------ P.N.SREEDEVI, D/O.NARAYANAN ELAYATH, PEECHAMPILLY ILLAM, KORATTY P.O., THRISSUR DISTRICT. BY ADV. SRI.DEEPAK T.NEDUNGADAN RESPONDENTS: ------------- 1. JAYARAJ, S/O.RAMAKRISHNAN, KAREKKATTUPARAMBIL, CHALAKUDY VILLAGE, CHALAKUDY. 2. STATE OF KERALA REPRESENTED BY GOVT.PLEADER. BY ADV. SRI.T.N.MANOJ SRI.DINESH R.SHENOY PUBLIC PROSECUTOR, SRI C.K.SURESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R NO REPRESENTATION. DISMISSED SD/- K.R.UDAYABHANU, JUDGE 18/09/2007 ORDER ON CRL.M.P.NO.4897/2000 IN CRL.R.P.NO.913/2000 DISMISSED. SD/- K.R.UDAYABHANU, JUDGE 18/09/2007 \\TRUE COPY// A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 913 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2008. ORDER Having heard learned counsel for the parties at length and having perused the entire materials available on record, I am satisfied that this case has to be remitted back to the trial court to enable the petitioner/accused to adduce defence evidence. 2. Petitioner was found guilty by the trial court under Section 138 of the Negotiable Instruments Act and convicted thereunder and sentenced to undergo simple imprisonment for 2 months and also to pay a fine of Rs.1,10,000/- as compensation to the complainant under Section 357 of the Code of Criminal Procedure. It was further directed that in default of payment of the fine amount, petitioner shall suffer simple imprisonment for 3 months. 3. The learned Sessions Judge in appeal confirmed the order of conviction. However the sentence was modified and petitioner was directed to undergo simple imprisonment for 7 days. She was further directed to pay an amount of Rs.1,15,000/- as compensation and in default of payment to undergo simple imprisonment for a period of 3 months. It was further directed that on realisation of the amount, the complainant shall be paid Rs.1,10,000/- as compensation. 4. The defence set up by the petitioner before the courts below was that Ext.P1 cheque was not supported by any consideration at Crl.RP.913/2000 2 all. Petitioner had a definite case that the cheque in question was obtained under duress after detaining her husband in illegal confinement. She had stated in her statement given under Section 313 Cr.P.C that her husband was detained by the father of the complainant and some others as a sequel to a money transaction between them. Petitioner was asked to give a blank cheque in discharge of the alleged debt of her husband and it was thus that she happened to issue Ext.P1 cheque. I do not propose to deal with the above aspect of the issue any further, particularly in view of the contention raised by the learned counsel for the complainant that the only suggestion put to Pw.2/complainant in the course of his cross-examination was that the cheque was obtained “by force” towards discharge of the money payable by her husband. 5. Learned counsel for the petitioner contends that the trial court had refused to give an opportunity to the petitioner to examine her witnesses who were produced before the court on two occasions. It is admitted by learned counsel that on the day when ultimately the case was taken up, the witnesses could not be produced before the court. The learned Magistrate had therefore closed the evidence and the case was disposed of after hearing the learned counsel for the parties. 6. Though the above aspect was brought to the notice of the learned Sessions Judge and a request was made to remit the case to the trial court, the learned Sessions Judge did not accede to the above plea. In the judgment, the learned Sessions Judge observed that “it was not possible at all to understand from the cross-examination of the Crl.RP.913/2000 3 prosecution witnesses and 313 examination of the accused as to why those 2 witnesses” were to be examined. The learned Sessions Judge further observed that petitioner had not explained why she wanted those witnesses to be examined and that he did not find any cogent or reasonable purpose for the examination of the witnesses, especially since the purpose of such examination was not clarified. I am unable to agree with the above reasoning of the learned Sessions Judge in this regard. It is seen observed by the learned Sessions Judge that the proceedings of the trial court had clearly indicted that 2 witnesses were present in Court on two occasions. It may be true that petitioner could not produce the witnesses on the day when the case was ultimately taken up. But such failure should not have been a reason to deprive the petitioner an opportunity to examine the witnesses. 7. I am persuaded to take the above view in the peculiar facts and circumstances of this case and particularly for yet another reason. It has now been brought to my notice in the course of the argument that respondent No.1/complainant had instituted a civil suit, OS.NO.140/97, against the father of the petitioner, Sri.Narayanan Elayath. The said suit was dismissed by the Additional Subordinate Judge, Irinjalakuda by judgment dated January 31, 2003. Learned counsel for the petitioner submits that the learned Subordinate Judge had entered a finding that the cheque involved in this case and the cheque that was allegedly issued by petitioner's father (which was the subject matter of the above suit), were not supported by consideration. Reference has been made to the above aspect only to indicate that the Crl.RP.913/2000 4 petitioner had a definite and consistent case that Ext.P1 cheque was not supported by consideration. I hasten to add that none of the observations made above shall weigh with the trial court at the time when the case is taken up for further consideration. 8. Having regard to the totality of the facts and circumstances of the case I am satisfied that this is a fit case in which petitioner is entitled to get a further opportunity to examine her two witnesses. Therefore the order of conviction and sentence passed against the petitioner as confirmed by the Sessions Court is set aside. The case is remitted back to the trial court for fresh disposal in accordance with law. Petitioner shall be at liberty to examine her witnesses . It will be open to the complainant also to adduce further evidence, if so advised. 9. The parties shall appear before the court below on February 5, 2008. Learned Magistrate shall make an earnest endeavour to dispose of the case as expeditiously as possible, at any rate within 4 months from the date of receipt of a copy of this judgment. Registry shall send back the records to the court below forthwith. A.K. Basheer Judge. an.