IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 625 of 2009() ----------------------------- CRA.274/2006 of ADDL. DISTRICT AND SESSIONS COURT(ADHOC) FAST TRACK-III, PATHANAMTHITTA CC.899/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- GIRIJA SHARMA, AGED 44 YEARS, W/O.NEELAKANDA SHARMA, NEITHALLOOR ILLOM, NJALBHAGOM MURI, KAVIYUR VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S)/RESPONDENTS/ COMPLAINANT & STATE ---------------------------------- 1. P.KURIAN PHILIPOSE, PADINJARETHI VEEDU, NJAL BHAGOM, KAVIYOOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 SRI.VARUGHESE M EASO FOR R1 SRI.VIVEK VARGHESE P.J. FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.625 of 2009 -------------------------------------- Dated this the 1st day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional District & Sessions Judge (Adhoc) Fast Track Court-III, Pathanamthitta in Crl.Appeal No.274 of 2006 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. Complaint was preferred by respondent No.1 alleging that for discharge of a liability petitioner issued Ext.P1, cheque dated 11.3.2002 for Rupees one lakh and that cheque was dishonoured for insufficiency of funds on presentation on 22.3.2002. Respondent No.1 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Petitioner received the notice but she neither replied nor paid the amount. Hence the complaint. Respondent No.1 gave evidence as PW1. Ext.P1 is the cheque in question. Its dishonour for the reason above stated and issue and service of statutory notice on petitioner are not disputed before me and are proved by Exts.P2 to P5. Dispute is regarding the alleged execution of the cheque. Crl.R.P.No.625/2009 2 3. According to the petitioner, she had a case with one Sasidharan Nair and she was liable to pay certain amount to the said Sasidharan Nair. She had issued two signed blank cheques to said Sasidharan Nair, one of which is Ext.P1. That signed blank was misused, petitioner claimed. In cross examination of respondent No.1 (PW1) he stated that he is running a travel agency and a shop. He claimed that he lent money to the petitioner if he remembers it correctly, on 6.2.2002 but claimed that he had not taken any document at the time of that transaction. Petitioner gave a cheque to him on 11.3.2002. He denied the suggestion that Sasidharan Nair was known to him. He does not remember whether he had filed a caveat petition against the petitioner. To a specific question whether he had filed such a petition in the civil court on 18.1.2002, he answered in the affirmative. Then he admitted that he had a dispute with the petitioner and her husband (over a shop room) but he claimed that thereafter he was in good terms with the petitioner. Respondent No.1 admitted that he is a defendant in O.S.No.83 of 2002 but claimed that the suit was dismissed. He does not remember whether that suit was instituted on 18.1.2002. Petitioner did not adduce any evidence on her side. Learned magistrate considered the evidence on record and concluded that petitioner issued the cheque for the discharge of a legally enforceable debt/liability and convicted her. She was sentenced to undergo imprisonment for three months Crl.R.P.No.625/2009 3 and pay compensation of Rupees one lakh with default sentence of imprisonment for one month. Conviction and sentence were confirmed by the appellate court. 4. It is argued by learned counsel for petitioner that version of respondent No.1 regarding the alleged payment of Rupees one lakh to the petitioner on 6.2.2002 when it is admitted by respondent No.1 that he had filed a caveat petition against the petitioner and others on 22.11.2001 is not believable. Learned counsel submitted that petitioner has produced relevant documents in this revision and requested that the same may be admitted in evidence under Section 391 of the Code of Criminal Procedure (for short, “the Code”). Learned counsel for respondent No.1 contends that evidence sought to be introduced in revision were not produced either in the trial court or in the appellate court and at any rate there is no proper certification of the documents as required under Section 391(2) of the Code. 5. I do not propose to admit those documents in evidence in this revision for, that will deprive respondent No.1 of an opportunity to adduce contra evidence and if necessary, explain the circumstances that may appear against him from those documents. Question for consideration is whether petitioner should be given an opportunity to adduce evidence. It is not the case of petitioner introducing a new case in this revision by producing certain documents. It is seen that necessary foundation has already been laid by the Crl.R.P.No.625/2009 4 petitioner in the course of cross examination of respondent No.1 which I have already adverted to. According to the petitioner, it is quite impropable that when there was difference of opinion between her and respondent No.1 regarding the occupation of the shop room, respondent No.1 would advance Rupees one lakh and that too without any document to evidence that. Documents produced in this revision are copies of a caveat petition dated 22.11.2001 filed by respondent No.1 against the petitioner and her husband anticipating a litigation against him at the hands of petitioner and her husband. Another document produced is a copy of plaint dated 23.1.2002 filed by husband of the petitioner and others against respondent No.1 seeking cancellation of a document, eviction of respondent No.1 and others from the disputed shop room and claiming damages for his unlawful use and occupation. In the light of the defence set up by petitioner, these documents cannot be said to be irrelevant or not germane for consideration. 6. True that petitioner did not produce the relevant documents in any of the courts below. But I stated that petitioner has already taken up a defence based on those documents and it was put to respondent No.1 when the latter was in the box. Hence notwithstanding some laches on the part of petitioner in producing the documents at the appropriate stage I am inclined to give an opportunity to her to adduce evidence on her side since such a course is found necessary in the ends of justice. Needless to say that if so advised, respondent No.1 will also get opportunity to adduce evidence. In the light of the above, Crl.R.P.No.625/2009 5 conviction and sentence imposed on the petitioner are liable to be set aside and I do so. Resultantly this revision succeeds. Conviction and sentence imposed on the petitioner are set aside and the case is remitted to the trial court for fresh disposal after giving both sides opportunity to adduce evidence. Learned magistrate is directed to expedite the trial and disposal of the case. Parties shall appear in the trial court on 3.8.2009. Crl.M.A.No. 1870 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks