IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1920 of 2004() ------------------------------ CRA.460/2000 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.894/1998 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------------------- PURUSHU @ PURUSHOTHAMAN, AGED 47 YEARS, SON OF RAU, KOZHAMPURATH HOUSE, P.O. MAKKADA, KAKKODI, KOZHIKODE DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENT(S): RESPONDENT/COMPLAINANT: ---------------------------------------------------- 1. GANGADHARAN, PROPRIETOR, GANGA INDUSTRIES, 34/1468, MANDODI, KARIKKAMKULAM, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = Crl.R.P.No.1920 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of December, 2009. O R D E R 1.The revision petitioner stands convicted under Section 138 of the Negotiable Instruments Act. He was sentenced to undergo simple imprisonment for three months by the Court of first instance. His appeal stands dismissed. 2.The allegation against the accused is that he issued Ext.P2 cheque for Rs.75,000/- drawn on an account maintained by him and on presentation of that cheque, it was dishonoured on ground of insufficiency of funds. The said cheque was alleged to have been issued in discharge of a legally enforceable debt or liability. 3.At trial, the complainant gave evidence as P.W.1 and Exts.P1 to P8 were marked. The accused gave CrlRP1920/2004 -: 2 :- evidence as D.W.1. He also proved reply notice Ext.D1 and the postal articles in connection with that. 4.The transaction between the parties, as emerging out of the evidence on record, reflects that the accused was employed as a commission agent for the complainant and the cheque was issued in satisfaction of the total outstandings due from the accused to the complainant. The business of the complainant in spare part manufacturing calls for collection of funds by the accused, as an agent. Ultimately, Ext.P1 receipt and Ext.P2 cheque taken together would show that the transaction between the parties ended with the issuance of the said cheque and the remaining amount as cash reflected as per Ext.P1. 5.The defence version is that Ext.P2, a blank signed cheque and a blank signed stamp paper were entrusted by the accused to the complainant while the latter took the accused as an employee. CrlRP1920/2004 -: 3 :- According to the accused, with the passage of time, the complainant refused to pay amounts due to the accused and as a result, they fell apart and the cheque was misused to file the complaint. This version rendered under Section 313 statement is also spoken to by D.W.1. It also appears that he had issued a notice, though beyond the statutory time raising the same plea. 6.The courts below have concurrently assimilated the evidence to conclude that the accused is guilty. In doing so, P.W.1, the complainant has been believed. A discrepancy which was apparent on Ext.P1 has been adverted to and considered by the trial court as also the appellate court. The defence version did not find favour for the reason that though the accused had even notified in his Ext.D1 reply that he would sue the complainant for amounts due to him, no suit was filed. On the basis of inferences drawn with the materials on record, it was concluded that the version of the accused cannot be believed. The CrlRP1920/2004 -: 4 :- courts below were prepared to act on the version of the complainant regarding the issuance of the cheque, but found it unreasonable to accept the defence version that the cheque and signed papers were entrusted at the time of commencement of the employment. 7.Before the Court of Session, the accused brought on record the judgment in a civil suit filed by the complainant against the accused for realisation of the money allegedly due to the complainant on account of misappropriation etc. The complainant lost that suit. On the basis of that suit, it was attempted to be canvassed before the Court of Session that the civil court having found against the plea of the complainant, the accused is entitled to an acquittal on the same set of facts. Making reference to Sections 40 to 43 of the Evidence Act, the Court of Session negatived that plea of the accused. 8.In support of the revision, learned counsel for CrlRP1920/2004 -: 5 :- the accused relying on the judgments in Narayana Menon v. State of Kerala, 2006(3) KLT 404(SC), Krishna Janardhan Bhat v. Dattatraya G.Hegde, (2008) 4 SCC 54 and Kamalammal v. Mohanan, 2006 (3) KLT 972, argued that existence of legally recoverable debt is not a matter of presumption under Section 139, though it is obligatory on the courts to presume the liability of the drawer for the amount of the cheque in every case where the factual basis for such presumption is established. It was argued on behalf of the accused that on the same set of facts, the civil court having negatived the plea of the complainant for relief, the order of conviction ought to have been vacated by the Court of Session since the decision of the civil court was rendered after the conviction was entered and sentence imposed by the Court of first instance. 9.Section 43 of the Evidence Act provides that judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42, are CrlRP1920/2004 -: 6 :- irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Evidence Act. Section 41 deals with judgments of the probate, matrimonial admiralty or insolvency jurisdiction, which has no application to the facts of the case in hand. Section 40 provides for the relevance of a judgment in relation to a subsequent situation of taking cognizance of a suit or holding a trial. Such relevance is attendant to the initiation of the subsequent proceedings. That would have a bearing only when the second proceedings gets excluded by the former. Section 42 states that judgments, orders or decrees which do not fall under Section 41 are relevant if they relate to matters of a public nature relevant to the enquiry. In so far as the case in hand is concerned, the pivotal issue is as to whether the subsequent conclusion by a civil court on the same set of facts or cause of action is decisive in so far as the decision in a criminal case on the same set of facts is CrlRP1920/2004 -: 7 :- concerned. That issue is fairly concluded by the decision of the Apex Court in K.G.Premshanker v. Inspector of Police and another, JT 2002 (7) SC 30, categorically laying down as follows: “26. What emerges from the aforesaid discussion is – (1) the previous judgment which is final can be relied upon as provided under sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res-judicata may apply; (3) in a criminal case, section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of the sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. CrlRP1920/2004 -: 8 :- 27. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under sections 40 and 42 or other provisions of the Evidence Act, then in each case, court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by 'A' on 'B's property, 'B' filed a suit for declaration of its title and to recover possession from 'A' and suit is decreed. Thereafter, in a criminal prosecution by 'B' against 'A' for trespass, judgment passed between the parties in civil proceedings would be relevant and court may hold that it conclusively establishes the title as well as possession of 'B' over the property. In such case, 'A' may be convicted for trespass. The illustration to section 42 which is quoted above makes the position clear. Hence, in each and every case, first question which would require consideration is – whether judgment, order or decree is relevant?, if relevant – its effect. It may be CrlRP1920/2004 -: 9 :- relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case.” 10.Now, even if I were to consider that the judgment in the civil case had any impact by treating it as relevant for any purpose as indicated in the last portion of paragraph 27 of K.P.Premshanker quoted (supra), it has necessarily to be noted that the accused did not sue the complainant before the civil court either independently or even by raising a counter claim in the complainant's suit. The stand taken by him even in Ext.D1 reply notice that he is proceeding to sue the complainant for money allegedly due to him was, therefore, merely a farce not to be countenanced but on the basis of which the courts below were justified in drawing an adverse inference that he had no justifiable defence in answer to the charge against him. At any rate, with the materials on record, the courts below cannot be accused of having acted illegally or arbitrarily in the matter of appreciating the CrlRP1920/2004 -: 10 :- evidence and entering conviction and imposing the sentence which they have done. The Crl.R.P. fails. The same is accordingly dismissed. The bail bond stands revoked. The trial court will take steps for enforcement of the sentence. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/0212