IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3423 of 2005() ------------------------------ CRA.95/2002 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.263/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- DANIEL JACOB, VADAKKEVEETTIL KIZHAKKETHIL, KAITHAVADAKKU, CHETTIKULANGARA, MAVELIKARA. BY ADV. SRI.K.S.SIVA KUMAR SRI.SEBASTIAN PHILIP RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. V.K.ABRAHAM, MANAGER, MULAMOOTTIL BANKERS, PATHANAMTHITTA, REP. BY HIS POWER OF ATTORNEY HOLDER JACOB THOMAS, MANAGING DIRECTOR, MULAMOOTTIL LEASING & HIRE PURCHASING PVT. LTD., KOZHENCHERRY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.PHILIP MATHEW FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 3423/2005 ORDER ON CRL.M. APPLICATION NO. 22736/05 IN CRL. R.P.NO. 3423/05 DISMISSED. SD/- M.N. KRISHNAN, JUDGE 16.12.2008 /TRUE COPY/ P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 3423 OF 2005 --------------------------------- Dated this the 16th day of December, 2008 ORDER This revision is preferred against the judgment in Crl. Appeal No. 95/02 of the Addl. Sessions Judge, Pathanamthitta. The said appeal had arisen out of the conviction and sentence passed by the Judicial First Class Magistrate-I, Pathanamthitta in C.C. 263/99. The trial court found the accused guilty under Section 138 of Negotiable Instruments Act and sentenced him to undergo Simple Imprisonment for three months and to pay compensation of Rs. 40,000/- and in default to undergo Simple Imprisonment for three months. In appeal the learned Sessions Judge modified the sentence to one day that is till the rising of the court and pay a compensation of Rs. 40,000/- with default sentence. It is against that decision the accused has come up in revision. 2. Heard the learned counsel for the revision petitioner as well as the complainant's counsel. A perusal of the complaint would reveal that the prosecution is initiated under Section 138 of the Negotiable Instruments Act, when the amount due to the complainant was not paid and a cheque issued towards the Crl.R.P.No. 3423/2005 -2- discharge of the liability, which when presented for encashment was returned with an endorsement of insufficiency of funds. The statutory notice was given, no reply was sent and therefore prosecution was initiated. 3. The case of the accused appears to be that he had entered in a Hire Purchase Agreement with the complainant for the purchase of a motor vehicle and he has paid 17 instalments. According to him at the time of entering into Hire Purchase Agreement he has executed three blank signed cheques that had been used to file this complaint. In the trial court PW1 and DW1 were examined and Exts. P1 to P8 and D1 to D2 were marked. Both the courts below accepted the evidence of PW1 and found in favour of the complainant. Now the position is well settled (1) that there cannot be any presumption regarding the execution of a cheque (2) there cannot be any presumption regarding the fact that it is towards legally recoverable debt. 4. The presumption contemplated under Sections 118 and 139 of the Negotiable Instruments Act envisages a situation that when there has been a transaction between a complainant and the accused and towards the discharge of the liability to the Crl.R.P.No. 3423/2005 -3- complainant a cheque is issued and the execution of the same is proved, then the question of presumption under section 118 and 139 of the Negotiable Instruments Act may come in to play. It is also equally a settled position that the said presumptions are rebuttable presumptions and the apex court has held that the weight of evidence that has to be placed to displace the onus of the accused is comparatively less than that of the complainant. Now at last at the stage of evidence it has come out that there had been a Hire Purchase Agreement between the complainant and the accused. PW1 has deposed that at the rate of Rs. 1,600/- per month the revision petitioner has undertaken to pay the amount in 42 instalments. 17 instalments had been paid. Thereafter Ext. D1 notice is issued directing the revision petitioner to pay the instalments 18, 19 and 20 and also that a threat that if it is not paid the vehicle will be repossessed. A legally recoverable debt must be a debt which is legally enforceable and there must be specific conditions for the same. We are not having the Hire Purchase Agreement, the terms and conditions of hire purchase agreement or any other materials to find out what are the terms of contract entered between the revision petitioner and the complainant. Crl.R.P.No. 3423/2005 -4- Suppose only a default of three instalments is made whether it is possible to recover the entire amount due under the hire purchase is a matter that has to be governed by the contract between the parties. Unfortunately the said contract is not available before this court or before the courts below. There is also contention by the learned counsel for the revision petitioner that after Ext. D1 notice the vehicle has been repossessed. Then if the vehicle is repossessed what is the legal effect is also a matter that requires reconsideration. So in order to have a proper determination of the case before the court, now it has become absolutely necessary to find out the terms and conditions of the Hire Purchase Agreement as well as the question whether the vehicle is repossessed. The question of repossession has been denied by the Company. When these points are answered, then only the question of a legally recoverable debt or legally enforceable debt can be decided. I do not want to further elaborate the matter for the reason that any expression may go against one of the parties. But it requires evidence and therefore the conviction and sentence passed by the courts below are set aside and the matter is remitted back to the trial court for fresh consideration after permitting both the Crl.R.P.No. 3423/2005 -5- complainant as well as the accused to produce documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. The parties are directed to appear before the trial court on 21.1.2009. The trial court may try to dispose of the matter as expeditiously as possible. M.N. KRISHNAN,JUDGE vkm