IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 861 of 1995(D) -------------------------------------------- CRLA.45/1991 of IST. ADDL.SESSIONS COURT, KOLLAM CC.11/1990 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONER/APPELLANT/ACCUSED ---------------------------- P.RAMACHANDRAN NAIR, SREENILAYAM VEEDU, THAZHATHUKULAKKADA MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.M.S.RADHAKRISHNAN NAIR SRI.B.S.SWATHY KUMAR RESPONDENTS/RESPONDENTS ----------------------- 1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. 2. SARASWATHY AMMA SHEELA DEVI AMMA, KARIPPAMONKUNNATH VEEDU, THAZHATHUKULAKKADA MURI, KULAKKADA VILLAGE, KOTTARAKKARA. SRI.C.RAJENDRAN FOR R2 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.2468/1995 IN CRL.R.P. NO.861/1995 DISMISSED 16.09.2008 SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE tss THOMAS P. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. R.P. No. 861 OF 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of September, 2008 O R D E R The revision petitioner and PW3 are direct brothers. The 2nd respondent is the wife of PW3. The 2nd respondent, claiming that the revision petitioner borrowed Rs.75,000/- from her on 01.10.89 and for the discharge of that debt issued Ext.P1 cheque dated 26.10.89, which on presentation was dishonoured for insufficiency of funds and that in spite of dishonour intimation and demand for payment of the amount the revision petitioner did not respond favourably, initiated proceedings against the revision petitioner in the court of the Learned Judicial First Class Magistrate, Kottarakkara, for the offence punishable under Section 138 of the Negotiable Instruments Act (herein after referred as ‘the Act’). The 2nd respondent gave evidence as PW1. Supporting that version her husband deposed as PW3. PWs 2 and 4 are managers of the collecting and drawee banks examined to prove the dishonour of the cheque for insufficiency of funds. The revision petitioner claimed that he had no transaction with the 2nd respondent, nor had he issued any cheque. Instead, himself and PW3 were at logger heads on account of Crl.R.P. No.861/1995 -:2:- dispute regarding family properties, another sister of himself and PW3 (Hymavathi)had initiated legal proceedings against PW3 in the Sub Court, Kottarakkara for realization of certain amount allegedly due to her, PW3 and the 2nd respondent thought that the revision petitioner was behind that case, stealthily obtained the cheque book belonging to the revision petitioner, forged the cheque in question and presented it for encashment. He proved Exts.D1 to 3. Ext.D1 is the reply dated 11.11.89 to the statutory notice. Ext.D2 is the copy of the plaint in OS No.50/87 of Sub Court, Kottarakkara filed by Hymavathi against PW3. Ext.D3 is the copy of objection in indigent OP No.50/87 filed by PW3. The learned Magistrate came to the conclusion that Ext.P1 cheque was issued by the revision petitioner and found him guilty under Section 138 of the Act. The revision petitioner preferred Crl.A.No.45/91 before the Sessions Court, Kollam. In the meantime the 2nd respondent had filed OS No.55/91 before the Sub Court, Kottarakkara for realization of the amount allegedly due under Ext.P1. The learned Sub Judge dismissed the suit. A copy of the judgment was produced by the revision petitioner in the appeal and marked as Ext.D4. The learned Additional Crl.R.P. No.861/1995 -:3:- Session's Judge was not inclined to uphold the contention of the revision petitioner and dismissed the Criminal Appeal. Hence, this revision petition. 2. Heard counsel for the revision petitioner, 2nd respondent and the Public Prosecutor. The following point is raised for consideration: Whether the concurrent finding entered by the courts below regarding the due execution of the cheque is supported by the evidence on record? 3. As aforesaid, the 2nd respondent as PW1 and her husband as PW3 gave evidence regarding the alleged transaction claiming the alleged execution of Ext.P1 in favour of 2nd respondent. They claimed that they raised the required funds by disposing of the gold ornaments belong to the 2nd respondent. Though the 2nd respondent was not able to disclose the identify of the person to whom the gold ornaments were sold, PW3 claimed that the gold ornaments were purchased by one Sri.Sivadas. In the course of trial it was pointed out that the cheque number mentioned in the complaint differed from the cheque number mentioned in Ext.P1. Learned Magistrate was not inclined to give importance for that discrepancy and observed that as Crl.R.P. No.861/1995 -:4:- a bonafide mistake which did not in any way effect the core of the case pleaded by the 2nd respondent. Learned Magistrate also observed that even in Ext.D1, copy of reply there is no dispute that Ext.P1 contained the signature of the revision petitioner. A comparison of the disputed signature in Ext.P1 with the admitted signature of the revision petitioner was done and the learned Magistrate observed that the signatures are one and the same and that at any rate, if the revision petitioner disputed the authenticity of the signature in Ext.P1, he should have shown the courage to take Ext.P1 to an expert. Learned counsel for the petitioner submitted that learned Magistrate has taken a wrong view on the burden of proof and appreciation of evidence and that at any rate, the civil court having found that Ext.P1 was fraudulently created (as seen from Ext.D4), that verdict is binding on the criminal court and placed reliance on the decision of the apex court in Shanti Kumar v. Shakuntala Devi [(2004) 1 SCC 438] and in particular, the observation in paragraph 15 of that judgment. It is also submitted by learned counsel that though the 2nd respondent had preferred an appeal before this court against Ext.D4 judgment, that appeal was Crl.R.P. No.861/1995 -:5:- dismissed for non-prosecution and that the dismissal of the suit has thus become final. Learned counsel for the 2nd respondent, however, submitted that on the evidence adduced by the 2nd respondent, the finding regarding the due execution of Ext.P1 is unassailable. Learned counsel placed reliance on the decision of the apex court in Premshanker v. I.G. of Police [2002 (3) KLT 389], which is to the effect that the judgment of the civil court is not binding on the criminal court even if it deal with the same issues, but is relevant under Section 41 of the Evidence Act. 4. Though the learned Magistrate took the view that the signature in Ext.P1 is not disputed by the revision petitioner, I find from Ext.D1, the copy of reply to the statutory notice that the revision petitioner had disputed the authenticity of the handwriting as well as the signature in Ext.P1. When the signature in Ext.P1 was disputed by the revision petitioner, burden was not on him, but on the 2nd respondent to take Ext.P1 to a expert if she thought that expert opinion was needed. The due execution the cheque as a negotiable instrument was certainly to be proved by the 2nd respondent. It is true that Section 73 of the Evidence Act permitted the court to Crl.R.P. No.861/1995 -:6:- compare a disputed handwriting/signature with the admitted one. But it is also the settled position that criminality shall not be decided merely based on such comparison by court. 5. So far as the alleged transaction is concerned, it is conceded by PWs 1 & 3 as well that Hymavathi had filed a suit against PW3 for realization of money and there was an attachment of the property belonging to PW3. Concededly, Hymavathi is the sister of the revision petitioner and PW3. Though PWs1 & 3 did not admit that they had the impression that the revision petitioner was behind the institution of Ext.D2 suit, fact remained as deposed by PW4 that the account on which Ext.P1 was purported to be issued had become inoperative even as early as in the year 1983 while the alleged loan transaction leading to the alleged execution of Ext.P1 was on 01.10.89. Ext.P1 must have been one from the cheque book issued to the revision petitioner some time in the year 1983. A further fact revealed is that Ext.P1 is not in the handwriting of the revision petitioner, it is type written. Even the date is typewritten. It is not the case of the 2nd respondent or PW3 that the revision petitioner was illiterate or otherwise incapable of writing the cheque that he Crl.R.P. No.861/1995 -:7:- preferred to get it typewritten. It is true that as pointed out by the learned Magistrate, the mere fact that the cheque is typewritten cannot go against the case of the 2nd respondent. But certainly in the facts and circumstances of this case, and particularly as the cheque leaf was one issued about six years before its alleged execution, it certainly assumed importance. 6. Even going by the version of the 2nd respondent as PW1 and her husband (PW3), it is certain that the funds required to meet the request of the revision petitioner was raised by sale of ornaments belonging to the 2nd respondent. In other words, but for the sale of the gold ornaments the 2nd respondent was not in possession of sufficient funds. It is also in evidence through PW3 and Ext.D3 that PW3 was placed in a financially difficult situation during the relevant time. In such a situation it is quite improbable that the 2nd respondent and PW3, even if the revision petitioner is the direct brother of PW3 would have gone for the help of the revision petitioner by lending Rs.75,000/- which is not a very small amount and that too, by sale of the gold ornaments belonging to 2nd respondent. 7. The copy of the judgment produced by the revision petitioner Crl.R.P. No.861/1995 -:8:- in the appeal and marked as Ext.D4 is not before this court. But the learned counsel for the revision petitioner gave me a copy of Ext.D4. It is seen from that copy of the judgment in OS No.55/91 that the learned Sub Judge after consideration of the entire facts and evidence referred to certain suspicious circumstances surrounding the alleged execution of the cheque and came to the conclusion that the cheque was fraudulently created. Based on that finding, the suit for recovery of money was dismissed in favour of the revision petitioner. Concededly, on account of non prosecution or other reason the appeal was dismissed and the verdict of the learned Sub Judge in the civil suit has become final. 8. Though the learned counsel for the petitioner submitted that the finding of the civil court is binding on the criminal court, a reading of the decision cited by the learned counsel would show that the said observation was made in the context of the particular facts of the case namely, that the issue in that case was concerning the effect of the finding of the civil court regarding possession of the disputed property involved in proceedings under Section 145 of the Code of Criminal Procedure where, the ultimate authority to decide on the Crl.R.P. No.861/1995 -:9:- question of possession of the disputed property was not the Sub Divisional Magistrate but the Civil Court. The decision relied on by the learned counsel for the 2nd respondent clearly states that the decision of the Civil Court is not conclusive on the issue involved so far the criminal court is concerned but is certainly relevant. That the civil court found that Ext.P1 is fraudulently created and consequently dismissed the suit for recovery of money is certainly relevant for consideration of the same issue in the case on hand. 9. That the revision petitioner had replied to the statutory notice also indicates bonafides of the plea raised by him in defence. It is not as if the revision petitioner in the course of the trial or at the time of questioning under Section 313 Cr.P.C came up with a plea that he had not issued the cheque. At the earliest possible time, he stated in Ext.D1 that he did not have any transaction with the 2nd respondent as alleged, nor had issued the cheque. On a consideration of the entire facts and circumstances including the finding of the civil court on the same issue which is relevant for consideration, I am inclined to accept the contention of the revision petitioner that there was no sufficient material on record to come to the conclusion that he had Crl.R.P. No.861/1995 -:10:- issued the cheque in question. The question of drawing the presumption under Section 139 arose only when the due execution of the cheque is either admitted or proved, none of which arose in the case on hand. As such, the conviction and sentence of the revision petitioner for the offence punishable under Section 138 of the Act cannot be sustained. Resultantly, the revision petition succeeds. The conviction and sentence on the revision petitioner are set aside and he is acquitted of the charge against him. The amount of fine, if any deposited by the revision petitioner will be refunded to him. His bail bond will stand cancelled. THOMAS P. JOSEPH, JUDGE ttb