IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 135 of 2001(B) ------------------------------------- CC.10/1997 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER/COMPLAINANT : -------------------------------------------- K.V.PAUL, S/O.VARKEY, KUDACKANAL VEEDU, KUNNOM KARA, POONJAR THEKKEKARA VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENT/ACCUSED : ------------------------------ GEORGE @ WILSON, S/O.SCARIA, VENETTU VEEDU, CHOLATHADAMBHAGAM POONJAR THEKKEKARA KARA AND VILLAGE ADV. SRI.ALAN PAPALI PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL. R.P.No. 135 of 2001 ------------------------------ Dated this the 16th day of October, 2008 O R D E R Heard both sides. 2. Revision petitioner is aggrieved by the order dated 25/10/2000 passed by learned Judicial First Class Magistrate, Erattupetta under Section 245(1) of the Code of Criminal Procedure (for short, 'the Code') discharging the first respondent of the charges under Section 420 of the Penal code. 3. The case was instituted on a private compliant filed by the revision petitioner. Learned counsel for revision petitioner submitted that the order under challenge is illegal in that learned magistrate has evaluated the evidence as if it is an ultimate disposal of the case. According to the learned counsel, Section 245(1) of the code did not warrant such an appreciation of the evidence since what the court below ought to have looked into is only whether a case has been made out against the first respondent which if unrebutted would warrant his conviction. Counsel for the first respondent contented that no such case CRL. R.P.No. 135 of 2001 2 is made out. 4. Case of revision petitioner is that the first respondent borrowed Rs.1,40,000/- from him on 5/06/1995, first respondent issued Exhibit P1, cheque dated 12/06/1995 promising that the cheque would be honoured on presentation, he believed that word of the first respondent and lent the money. Revision petitioner attempted to encash the cheque on 12/06/95 but learned that there was no sufficient fund in the account of the first respondent. He informed the first respondent about that. First respondent promised the revision petitioner that he will discharge the liability in 10 installments and gave a fresh cheque. They entered into Exhibit P2, agreement to that effect on 12/06/1995. But the first respondent did not comply with the agreement. Hence revision petitioner was constrained to present the cheque dated 12/06/1995 for encashment. It was returned as payment was stopped by the first respondent. Notice was issued to the first respondent on 11/08/1995 to which the first respondent sent Exhibit P8, reply. Revision petitioner preferred complaint (C.C. No. 421 of 1995) in the court below for offence punishable under under Section 138 of the CRL. R.P.No. 135 of 2001 3 Negotiable Instruments Act and during the inquiry revision petitioner learned that the first respondent had issued stop memo even as on 4/02/1995. He was advised to withdraw the complaint for the offence under Section 138 of the Negotiable Instruments Act. Thereafter, he field the present complaint alleging offence punishable under Section 420 of the Penal Code. The stand taken by first respondent in Exhibit P8, reply dated 29/08/1995 is that the cheque leaf referred to in Exhibit P5 notice dated 11/08/96 (i.e. Exhibit P1) was found missing from his office on 2/02/1995 and the very next day itself, he informed his bank about that and requested to stop payment. According to the first respondent, revision petitioner stealthily got that cheque leaf. 5. In the court below revision petitioner gave evidence as PW1 and examined two witness. PW2, manager of the drawee bank stated that the cheque was dishonoured as payment was stopped. PW3 was examined to prove the alleged transaction. 6. Counsel for first respondent contends that even as per allegation made by revision petitioner, only a post dated cheque was issued and hence question of cheating did not arise. CRL. R.P.No. 135 of 2001 4 7. It is seen from the order under challenge that in para 10, learned magistrate observed that unless there is clear and convincing evidence that first respondent had either dishonestly or fraudulently induced revision petitioner on whom he played the deception, no offence of cheating can come out from it. Learned magistrate also observed that a dishonest intention cannot be inferred from the mere fact of a subsequent breach of promise. It is further observed by the learned magistrate that there is no clear and conclusive evidence of the criminal intention of the first respondent at the time when the offence is said to have been committed. Counsel for revision petitioner is justified in his contention that learned magistrate has transgressed the limits of section 245(1) of the Code, where learned magistrate is only required to consider whether a case which if unrebutted would warrant conviction has been made out. It is seen that learned magistrate has also not taken into account Exhibit P8 where, the date of issue of stop memo is given. 8. On going through the order under challenge, I am persuaded to think that learned magistrate has not considered the matter CRL. R.P.No. 135 of 2001 5 in the light of the requirement under Section 245(1) of the Code. The order under challenge is therefore liable to be set aside. Resultantly, this revision petition is allowed. The order under challenge is set aside. The case is remitted to the court below for fresh consideration of the matter in the light of the binding authorities as the extent of materials required under Section 245(1) of the Code. Learned magistrate shall consider the matter untrammeled by any observation contained in this order and pass appropriate orders. Parties shall appear in court below on 5/12/2008. Needless to say that court below to expedite the disposal of the case. THOMAS P. JOSEPH, JUDGE scm