IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 571 of 2001(A) --------------------------------------- CRA.22/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA CC.717/1995 of ADDL.SESSIONS COURT, PARAVUR .................... REVISION PETITIONER(S): --------------------------------- REMA, W/O. SASI, SREENILAYAM, KURUMASSERY. BY ADV. SRI.A.VIJAYAKUMAR RESPONDENT(S): ------------------------- 1. M.T.JOSEPH, S/O THOMAS, MANJALY HOUSE, ANGAMALY. 2. STATE OF KERALA REPRESENTED BY GOVERNMENT PLEADER BY PUBLIC PROSECUTOR SRI. AMJAD ALI, ADV. SRI.K.PRABHAKARAN FOR R1 SMT.ASHA ROSE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ================== Crl.R.P.No.571 of 2001 ================== Dated this the 5th day of December, 2008. O R D E R Revision Petitioner faced trial in the Court of Learned Judicial 1 Class Magistrate - I, Aluva for the offence punishable under Section 138 of the Negotiable Instruments Act. She was convicted and sentenced to pay a fine of Rs. 35,000/-. In appeal, learned Additional Sessions Judge confirmed the conviction and sentence. Hence this revision. 2. When this revision petition came up for hearing before me on 4.12.2008, there was no representation for the 1st respondent and hence the case was posted this day for hearing finally. There is no representation for the 1st respondent today also. 3. I heard learned counsel for revision petitioner and the public prosecutor. Following points arise for decision: (1) Whether revision petitioner issued the cheques in question in favour of 1st respondent for discharge of legally enforceable debts or liability. (2) Whether sentence is legal. Crl.R.P.No.571 of 2001 -2- 4. Perused the records. Point 1: Case pleaded by the 1st respondent and spoken by him as PW1 is that revision petitioner approached him with an offer to arrange a job for him abroad and received Rs.25,000/- for the said purpose. Revision petitioner was not able to arrange the job. On his demand for repayment of the amount, revision petitioner issued two cheques in his favour; Ext.P1 dated 8.10.1992 for Rs.15,000/- and Ext.P1(a) dated 10.10.1992 for Rs.10,000/-. He presented those cheques for encashment on 21.10.1992, but the same were returned as funds were insufficient. 1st respondent again presented the cheques on 3.12.1992 through Federal Bank, Angamaly branch. Cheques were dishonourned for the second time also, about which the 1st respondent got intimation on 24.12.1992. Regarding that, notice was issued to the revision petitioner on 8.1.1993. That was served on 9.1.1993. There was no payment as demanded in the notice and hence, the complaint. 5. Fact of dishonour of cheques for insufficiency of funds is not in dispute before me and is proved by Exts.P2 and P3. Service of notice is proved by Exts.P4 and P6. Then the question for consideration is whether revision petitioner issued the Crl.R.P.No.571 of 2001 -3- cheques in question for the discharge of any legally enforceable debt or liability. The plea raised by the revision petitioner is that she had no transaction with 1st respondent but her husband, Sri. Sasi Kumar had some transactions with the 1st respondent based on which she was harassed by the 1st respondent, and some other persons including the 1st respondent brought her husband from Angamaly and she was compelled to issue the cheques in question to avoid harassment revision petitioner examined DWs. 1 and 2 and proved Exts.D1 to D3. Evidence given by DWs. 1 and 2 is that 1st respondent and themselves had transactions with the husband of revision petitioner who had agreed to arrange visa for job abroad, husband of the revision petitioner failed to do so and thereon they all gathered in the presence of the husband of revision petitioner who executed Ext.D1, agreement. Based on that, 1st respondent and DW2 filed suits before the Civil Courts. Ext.D1 is a copy of the plaint filed by the 1st respondent against the husband of revision petitioner. Ext.D3 is copy of plaint filed by DW2 against the husband of revision petitioner. Learned counsel for revision petitioner contends that the Courts below went wrong in holding that revision petitioner issued the cheques in question for the discharge of legally Crl.R.P.No.571 of 2001 -4- enforceable debt or liability. 6. It is now settled that mere admission or proof of signature in the Negotiable Instrument does not tantamount to admission or proof of its due execution though admission or proof of signature may go a long way in proving its due execution. Here, execution of Exts.P1 and P1(a) in favour of 1st respondent is not admitted by the revision petitioner. According to her, she handed over Exts.P1 and P1(a) to the 1st respondent to avoid harassment. It is important to bear in mind that though there is a presumption under Section 139 of the Act that the cheque is issued for the discharge of debt or liability, that presumption as held by Hon'ble Supreme Court does not extend to the legality of recoverability of the debt or liability. These are the matters to be proved by the 1st respondent. 7. Going by version of the 1st respondent as PW1, it would appear that he allegedly paid Rs. 25,000/- to the revision petitioner some time in the year 1982, pursuant to the promise made by the revision petitioner, he went to Bombay in connection with securing the job, returned, continued his business and while so revision petitioner issued Exts.P1 and P1(a) on 8.10.1992 and 10.10.1992. Therefore, I am to Crl.R.P.No.571 of 2001 -5- understand that the 1st respondent allegedly paid Rs.25,000/- to the revision petitioner some time in the year 1982 before the 1st respondent allegedly went to Bombay. It is also the version of the 1st respondent that before the revision petitioner came to his shop offering to secure job for him he had no acquaintance with her. In spite of that, without taking a document from the revision petitioner, at least somebody witnessing the alleged payment, 1st respondent is said to have paid Rs.25,000/- to the revision petitioner for the mere offering to secure a job abroad. That case of 1st respondent is quite difficult to believe. It is also difficult to think that though 1st respondent went to Bombay sometime in the year 1982 and returned without being able to get the job as offered by the revision petitioner and thereafter he has been demanding payment of the amount and the revision petitioner who did not oblige that demand of the 1st respondent for about 10 years, on a fine morning on 8.10.1992 and 10.10.1992 issued the cheques in favour of the 1st respondent notwithstanding that not even a scrap of paper was with the first respondent to evidence payment of money to the revision petitioner. There is no evidence to show that between 1982 and 1992, any demand was made by the 1st respondent to the Crl.R.P.No.571 of 2001 -6- revision petitioner to pay the amount. 8. That there was transactions for the first respondent with Sasi Kumar, husband of the revision petitioner is admitted when the 1st respondent was examined as PW1. Sasi Kumar had offered to procure job for his close relative and received money from him, did not procure job and that culminated in Ext.D2. Ext.D1 refers to the payment made by the 1st respondent and others. Based on Ext.D1, it is admitted and proved by Ext.D2 that 1st respondent filed O.S. No. 787 of 1995 for recovery of money from the husband of the revision petitioner. Similarly, DW2 also filed a suit against the husband of the revision petitioner as O.S. No. 791 of 1995 as seen from Ext.D3. It is admitted by the 1st respondent and spoke by DWs.1 and 2 also that for the purpose of executing Ext.D2, agreement they had met together and wanted Sasi Kumar to execute the agreement. DW1 stated that Sasi Kumar was taken by them for the purpose of executing the agreement. It is difficult to believe that the 1st respondent had paid money to Sasi Kumar as well as his wife, revision petitioner for procuring job. Evidence on record justify the contention of the revision petitioner that she had no transaction with 1st respondent, and that she happened to give Crl.R.P.No.571 of 2001 -7- the cheques to avoid harassment. I also bear in mind that the responsibility of the revision petitioner is not to disprove the case set up by the 1st respondent. She need only probabilise her version. It is not shown that there was any legally recoverable debt or other liability in favour of the 1st respondent. Courts below have not properly appreciated the evidence. Materials in the case do not justify conviction of the revision petitioner. Conviction and sentence are only to be set aside. It follows the sentence imposed on revision petitioner is liable to be set aside. 9. It is submitted by the learned counsel for revision petitioner that a sum of Rs.5,000/- has been deposited in the trial court. It is made clear that if there is no other encumbrance on that deposit, revision petitioner can withdraw the same. This revision petition succeeds. Conviction and sentence on the revision petitioner are set aside and she is acquitted of the charge against her. Bail bond is canceled. Criminal Miscellaneous Petition No. 2743 of 2001 shall stand dismissed. THOMAS.P.JOSEPH, JUDGE rhs