IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Crl.Rev.Pet.No. 1215 of 2003() ------------------------------ CRA.172/2000 of ADDL.SESSIONS COURT (SPL.COURT), KOTTAYAM ST.263/1991 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.J.JOY, OUR ENTERPRISES, ADGORNSHERY, POONA. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, KOTTAYAM. 2. LEELAMMA ABRAHAM, PROPRIETRIX, BINO TIMBERS, PAYAPPADY, THAZHATHEKATTU HOUSE, VELOOR, KOTTAYAM. ADV. SRI.R.ANIL FOR R2 R1 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. ------------------------- Crl.R.P.No.1215 of 2003 ------------------------- Dated this the 28th day of June, 2010 ORDER Petitioner, the accused in S.T.No.263/1991, was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act by Chief Judicial Magistrate, Kottayam. Petitioner challenged the conviction and sentence before Sessions Court, Kottaym in Crl.A.No.172/2000. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction, but modified the sentence to simple imprisonment for two months, confirming the fine which was directed to be paid as compensation. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner was not present. Learned counsel appearing for the second respondent was heard and perused the records. 3. Second respondent/complainant lodged a complaint before Chief Judicial Magistrate's Court, Kottayam alleging that petitioner issued Exhibit P1 Crl.R.P.No.1215 of 2003 2 cheque drawn in Kottayam Branch of Catholic Syrian Bank for Rs.1,30,000/- and when the cheque was presented for encashment, under Exhibit P2, it was dishonoured and Exhibit P3 intimation was received and Exhibit P4 notice was issued by the second respondent demanding the amount covered by Exhibit P1 cheque and it was received by the petitioner under Exhibit P6 acknowledgement, but he failed to pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. 4. Learned Chief Judicial Magistrate, on the evidence of second respondent as PW1 and the Manager of the Bank as PW2 and Exhibits P1 to P7, convicted the petitioner, finding that evidence of PW1 establishes that Exhibit P1 cheque was issued towards discharge of an existing liability. The case of the petitioner that transaction was with the husband of the second respondent and in that transaction, three cheques were issued and no sales Crl.R.P.No.1215 of 2003 3 tax clearance was obtained and no intimation was received and therefore, petitioner is not liable to pay the amount covered by the cheque was not accepted by the learned Chief Judicial Magistrate. In appeal, learned Additional Sessions Judge confirmed that finding. 5. The records of the learned Chief Judicial Magistrate show that petitioner was questioned under Section 313 of the Code of Criminal Procedure on 22.2.2000 after closing the evidence of the second respondent on 14.2.2000. The case was then posted for filing witness list by the accused. Records show that a witness list was filed and an application was filed seeking summons to one witness, to produce documents. The proceedings paper also shows that though the witness was present on 5.4.2000, as documents were not available he was not examined. On 11.4.2000 the evidence was closed and posted for arguments. Petitioner thereafter filed an application to Crl.R.P.No.1215 of 2003 4 reopen the case pointing out that he has to examine the witness. It was allowed and summons was issued to the witness to produce documents. Case was posted to 26.5.2000. On 26.5.2000 the learned Magistrate recorded that “witness present. She has reported that documents are not available. She is discharged. Evidence is closed. Hearing to 8.6.2000”. The proceedings show that a petition was thereafter filed by the petitioner for permitting to examine herself. It was dismissed. It is thus clear that the Chief Judicial Magistrate disposed the case without providing adequate opportunity to the petitioner to adduce evidence. 6. Though it is not alleged in the complaint, as PW1 second respondent deposed that Exhibit P1 cheque was issued towards the payment for the timber supplied to the petitioner. When she was questioned further she admitted that there are records to establish the transaction and she is willing to produce those records. As second Crl.R.P.No.1215 of 2003 5 respondent did not produce the documents, petitioner filed an application directing her to produce the documents. It is seen that an affidavit was filed by the second respondent that those records are not available. In the light of the contentions raised by the parties, for the sole reason that a cheque was issued which according to the petitioner was not issued towards discharge of an existing liability or debt, an offence under Section 138 of the Negotiable Instruments Act will not be attracted. When the petitioner has a case that he has no transaction with the second respondent and to establish his case a witness list was filed including examination of the husband of the second respondent, learned Magistrate was not justified in closing the evidence, when examination of the witnesses was not given up. In such circumstances, interest of justice warrants that the case is to be remanded to Chief Judicial Magistrate for fresh disposal after granting Crl.R.P.No.1215 of 2003 6 opportunity to the accused to examine the witnesses sought for in the witness list. On such evidence being adduced it is for the Chief Judicial Magistrate to decide whether there was a transaction between the complainant/accused and whether Exhibit P1 cheque was issued towards discharge of any such debt or liability. 7. Revision is allowed. Conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act as confirmed in Crl.A.No.172/2000 is set aside. S.T.263/1991 is remanded to Chief Judicial Magistrate for fresh disposal in accordance with law, after granting opportunity to the petitioner/accused to examine the witnesses shown in the witness list. It is made clear that it is for the petitioner to make available the witnesses and to take steps to issue summons if their presence could be procured only on such summons. The party shall appear before the Chief Judicial Magistrate Court on 6.8.2010 and Crl.R.P.No.1215 of 2003 7 petitioner will take steps immediately on appearance and shall not protract the case. Chief Judicial Magistrate to dispose the case expeditiously. Sent back records to the Chief Judicial Magistrate immediately. M.Sasidharan Nambiar,Judge cms