IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 40 of 2007(D) ----------------------------- CRA.665/2005 of ADDL.DISTRICT AND SESSIONS COURT, ADHOC-III, KOLLAM CC.44/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.G.RAMESH KUMAR, S/O.K.P.GOPINADHAN NAIR, RAJASHRI FILMS, SONA BUILDING, RAMMOHAN ROAD, CALICUT- 673 064. BY ADV. SRI.T.A.SHAJI SMT.T.V.NEEMA RESPONDENT(S): COMPLIAINANT & STATE: ------------------------------------ 1. K.BAIJU, S/O.KARUNAKARAN, AMBALAKKARA HOUSE, THRIKKANNAMANGAL, KOTTARAKKARA. 2. SANTHOSH, S/O.SIVADASAN SANKAR VILASOM, NEERAVIL PERINAD POST, KOLLAM. 3. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C M NAZAR SRI.M.K.CHANDRA MOHANDAS FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO.40 OF 2007 ............................................ DATED THIS THE 29th DAY OF OCTOBER, 2008 ORDER Revision petitioner is the accused and first respondent, the complainant. First respondent lodged the complaint through PW1, the power of attorney holder under Ext.P1, alleging that towards repayment of Rupees Fifteen lakhs, due to the first respondent, petitioner issued Ext.P2 cheque drawn in his account maintained in Calicut Branch of Centurion Bank and when it was presented for encashment, through Kottarakara branch of South Indian Bank, it was dishonoured for insufficient funds and in spite of Ext.P6 notice, demanding the amount covered by Ext.P2 cheque, received by petitioner under Ext.P8, he did not pay the amount and thereby committed the offence. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. After the power of attorney holder was examined as PW1, first respondent himself was examined as PW2. Ext.P1 to P9 were also marked. On the side of the defence, no witness was examined. Ext.D1 letter was marked. 2. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to simple imprisonment CRRP 40/2007 2 for one year and a compensation of Rupees Fifteen Lakhs and in default, simple imprisonment for one year for the offence under Section 138 of N.I.Act. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.665 of 2005. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for revision petitioner and first respondent were heard. 4. The argument of the learned counsel appearing for revision petitioner is that courts below did not properly appreciate the evidence and PW1, who lodged the complaint on behalf of first respondent, when examined as PW1, admitted Ext.D1 receipt which establishes that the entire amount due to first respondent under Ext.P2 was paid by revision petitioner and learned Magistrate should have found that no offence under Section 138 of N.I.Act is attracted. It is argued that the conviction is not sustainable. 5. Learned counsel appearing for first respondent argued that Ext.D1 receipt was not issued by the petitioner and as PW2, he denied execution of Ext.D1 and in the absence of evidence to CRRP 40/2007 3 prove that Ext.D1 was issued by first respondent, courts below were justified in convicting the petitioner. 6. Petitioner is not disputing the fact that Ext.P2 cheque was issued towards the amount due under the transaction entered between petitioner and first respondent. What is claimed by petitioner was that the entire amount due to first respondent under Ext.P2 was paid after receipt of Ext.P6 notice demanding the amount covered by Ext.P2 cheque and therefore no offence under Section 138 of N.I.Act is attracted. Commission of an offence under Section 138 of N.I.Act will be completed only on the failure of the drawer of the cheque, to pay the amount within the statutory period as demanded by the payee by a notice in writing demanding the amount covered by the dishonoured cheque. Therefore if after receipt of Ext.P6 notice under Ext.P8 acknowledgment card, petitioner had paid the amount due to first respondent as demanded under Ext.P6, it cannot be disputed that no offence under Section 138 of N.I.Act is attracted. The crucial question is whether there is evidence to prove that the amount covered under Ext.P2 cheque was paid by the revision petitioner subsequent to the receipt of Ext.P6 notice. 7. Ext.D1 is the letter issued in the letter pad of first CRRP 40/2007 4 respondent, in the name of his concern, Ambalakkara films. It is stated in Ext.D1 dated 10.10.2003 addressed to the revision petitioner that first respondent has received the entire amount covered by Ext.P2 cheque. There was a demand for interest for the amount with a threat that if interest is not paid, action would be taken against revision petitioner. If Ext.D1 is a receipt issued by first respondent, as it purported to be, no offence under Section 138 of N.I.Act could be attracted as the amount covered under Ext.P2 cheque was received by first respondent on 10.12.2003. The question is whether Ext.D1 is proved to be the letter issued by first respondent. 8. When the power of attorney holder of first respondent was examined as PW1, Ext.P1 was confronted. PW1 admitted that the signature of first respondent seen in Ext.D1 is that of first respondent. It is also admitted by PW1 that the seal of Ambalakkara films is seen in Ext.D1, which is written in the letter head of Ambalakkara films. It is also deposed by PW1 that as per that letter, first respondent has received the amount covered by the dishonoured cheque. Therefore if the evidence of PW1 is accepted, Ext.D1 is to be taken as an acknowledgment of receipt of the money covered under Ext.P2 by first respondent. CRRP 40/2007 5 But after examination of PW1, first respondent was examined as PW2. PW2 denied Ext.D1. He contended that the signature seen in Ext.D1 is not his signature. He also deposed that he did not receive the amount covered by Ext.P2 cheque and did not issue Ext.D1. Courts below, based on the evidence of PW2, did not accept Ext.D1 and the discharge pleaded by the revision petitioner and convicted him. Learned counsel appearing for revision petitioner pointed out that PW1, the power of attorney holder has proved Ext.D1 as the letter containing the signature of first respondent. It is therefore argued that courts below were not justified in convicting the petitioner. 9. Learned counsel appearing for first respondent argued that the signature seen in Ext.D1 was not proved in accordance with law as PW2 had denied the signature. A perusal of the signature of revision petitioner seen in Ext.D1 has resemblance with the admitted signatures of first respondent available in the records. Learned counsel appearing for first respondent submitted that an opportunity may be granted to send Ext.D1 to an expert to compare the signature seen in Ext.D1 with his admitted signature of the relevant period. Learned counsel also submitted that the handwriting in Ext.D1 is also to be examined. CRRP 40/2007 6 But there is no case for first respondent that Ext.D1 was created making use of a paper containing the signature of the first respondent. The only case is that it was not issued by first respondent and did not contain his signature. There is no case for petitioner that Ext.D1 is written in the handwriting of first respondent. Hence identity of the handwriting in Ext.D1 is not relevant. Question is only on the identity of the signature in Ext.D1. In such circumstances, interest of justice warrants that an opportunity is to be granted to the first respondent to ascertain whether signature seen in Ext.D1 is that of first respondent or not. Learned counsel appearing for first respondent submitted that if the signature in Ext.D1 is that of first respondent, first respondent is prepared to accept the case of the revision petitioner. Learned counsel also submitted that if the signature seen in Ext.D1 is not that of first respondent, case of petitioner that he discharged the entire liability due under Ext.P2 cheque can only be rejected. 10. In such circumstances, conviction and sentence are set aside. C.C.44 of 2004 is remanded to Judicial First Class Magistrate, Kottarakara. Learned Magistrate is directed to send Ext.D1 along with the other documents containing the admitted CRRP 40/2007 7 signatures of first respondent during the relevant period, for comparison and to give opinion whether signature seen in Ext.D1 is that of first respondent or not. If the signature is that of first respondent, learned Magistrate is to proceed on the basis that Ext.D1 letter was issued by first respondent admitting the receipt of the amount due under Ext.P2 cheque. On the other hand, if it is to be found that Ext.D1 does not contain the signature of first respondent, the case of discharge pleaded by revision petitioner is to be rejected and petitioner is to be convicted. Learned Magistrate is directed to dispose the complaint afresh after getting the report. Send back the records. M.SASIDHARAN NAMBIAR, JUDGE lgk/-