IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 Crl.Rev.Pet.No. 1512 of 2011() -------------------------------------------- CRA.349/2009 OF SESSIONS COURT, ADHOC-II, MANJERI. ST.1067/2008 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER/RESPONDENT/COMPLAINANT ------------------------------------------------------------------------- V.R. JOSEPH, S/O.ROCKEY, VICHATT, MODAPPILASSERI, VANIYAMBALAM, NILAMBUR. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM, SMT.MABLE.C.KURIAN. RESPONDENTS/APPELLANT/ACCUSED AND STATE ----------------------------------------------------------------------------- 1. K.T. MOOSAKUTTY, S/O.MOHAMMED ABDULLA, KOTTAMMAL THANDUPARAKKAL, PORUR, NILAMBUR TALUK-679 329. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 682 031. R1 BY ADV. SRI.K.SHIBILI NAHA, SMT.A.LOWSY. R2 BY PUBLIC PROSECUTOR MR.M.R. VENUGOPAL. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/09/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1512 OF 2011 ----------------------------------- Dated this the 20th day of September, 2011 O R D E R Complainant in a cheque case has filed this revision challenging the order of remission passed by the learned Additional Sessions Judge, Adhoc-I, Manjeri setting aside the conviction and sentence imposed against the first respondent/accused with direction for providing further opportunity to the accused to lead evidence in the case. 2. Notice given, the first respondent/accused has entered appearance. 3. I heard the counsel on both sides. The learned Magistrate, negativing the plea of not guilty canvassed by the accused, on the materials placed, held the accused guilty and convicted him of the offence under Section 138 of the N.I.Act. He was thereupon sentenced to undergo simple imprisonment Crl.R.P.No.1512/2011 2 for four months and to pay compensation of Rs.1 lakh, the cheque amount with default term of imprisonment for two months more. He challenged the conviction and sentence so rendered filing an appeal. In the appeal, among other grounds to assail his conviction, he canvassed the dismissal of an application moved by him to summon the details of account maintained by the complainant in a bank, to impeach the assertion made by the complainant, examined as PW1, as to obtaining of money from his children and the transactions relating thereto. The learned Additional Sessions Judge, looking into the materials covered by the case and taking a view that the accused had been denied an opportunity to produce crucial evidence by the order dismissing his application to call for the account details of the complainant, expressing its views as to the burden of proof cast on the complainant and also the accused with reference to the judicial pronouncements made by the Apex Court, set aside the conviction and sentence imposed against the accused directing the remission of the case for fresh disposal. While passing an order of remission, it was directed that the learned Magistrate shall examine the materials afresh, after Crl.R.P.No.1512/2011 3 providing further opportunity to lead additional evidence, with reference to the observations made in its judgment. Going through the judgment of the learned Magistrate, I find, the accused had got himself examined as DW1 and also produced documentary materials in support of his defence to challenge his prosecution. To probabilise his defence, the assertion canvassed by the complainant in his evidence as PW1 had to be disproved by allowing his application moved for getting the account details of the complainant is too far-fetched, and at any rate, that cannot be taken as a ground for remitting the case setting aside the conviction. The defence canvassed by the accused, nor the merit of the prosecution set up by the complainant depended upon the account details of the complainant, the information of which was sought to be obtained by moving an application by the accused. This was a case where both sides have let in evidence in support of the rival case presented by them. No doubt, in a prosecution for the offence under Section 138 of the N.I.Act, the burden is on the complainant to prove his/her case and that onus never shifts. But, having regard to the fact that the nature of offence covered by Section 138 of the N.I.Act, is more or less quasi civil, with the Crl.R.P.No.1512/2011 4 statutory presumptions available in favour of a payee or holder in due course of the cheque and, further, the requirements prescribed by the Statute had to be complied even to take cognizance of such offence, where both sides have adduced evidence in the case, the burden of proof, on whom it is vested, may pale into insignificance as the question to be examined is only whether the offence imputed has been made out or not on the materials placed. The accused when he sets up a defence need only show that it is probable. He need only satisfy the test of preponderance of probabilities to sustain his defence. In the given facts of the case, as already indicated, the probability of the defence canvassed by the accused was not depended upon disproving the assertion of the complainant with respect to the money received by him from his daughter, or for what purpose it has been utilised. Even assuming that the money received by him in his account has some relevance in testing the creditworthiness of his testimony, that has to be looked into with reference to the totality of his testimony as a whole with regard to the proved facts and circumstances of the case. In that view of the matter, I find setting aside of the conviction of the accused Crl.R.P.No.1512/2011 5 and remission of the case ordered by the lower appellate court was not at all justified. 4. Setting aside the judgment of the lower appellate court, the lower appellate court is directed to take back the appeal on file and dispose it on its merits on the available materials after hearing both parties. Parties are directed to appear through counsel before the Additional Sessions Judge (Adhoc – II), Manjeri on 17.10.2011. The learned Additional Sessions Judge shall give the appeal top priority, and dispose it as expeditiously as possible. With the above direction, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.1512/2011 6