IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 Crl.Rev.Pet.No. 3672 of 2006() ------------------------------ CRA.342/2004 of ADDL. SESSIONS COURT (FAST TRACK) III, PALAKKAD CC.215/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONER/ APPELLANT/2ND ACCUSED ------------------------------------------ P.ARAVINDAKSHAN, S/O.LATE P.R.K.NAIR, AGED 54 YEARS, PROPRIETOR, SYAMALA ENTERPRISES, VENNAKKARA, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENTS/RESPONDENTS/ COMPLAINANT AND STATE ------------------------------------ 1. V.RAJAGOPALAN, S/O.VAYYAVURI UDAYAR, AGED 58 YEARS, PANAMTHODIYIL, POLPULLY AMSOM, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JACOB SEBASTIAN FOR R1 R2 BY PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO. 3672 OF 2006 ------------------------------------------ Dated 2nd February 2009 O R D E R Revision petitioner is the accused and first respondent, the complainant in C.C.215/2000 on the file of Judicial First Class Magistrate, Palakkad. Revision petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. It was challenged before the additional Sessions court, Palakkad in Crl.A.342/2004. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and modified the sentence to imprisonment till rising of court and compensation of Rs.23,000/-. Revision is filed challenging the conviction. 2. Learned counsel appearing for revision petitioner and first respondent were heard. 3. Argument of learned counsel appearing for revision petitioner is that courts below did not properly appreciate the evidence and material facts were omitted to be appreciated. It was pointed out CRRP 3672/06 2 that in spite of the evidence of PW1/first respondent that he has nothing to do with Rajani Enterprises and the fact that Ext.D8 extract of the sales tax register relating to Rajani Enterprises establish that it is the first respondent and his son who are the partners of the Rajani Enterprises establish that PW1 cannot be believed and courts below did not properly appreciate the fact that first respondent is prepared to suppress any fact to put forth a false case. Learned counsel also argued that in spite of the specific case of the revision petitioner that Ext.P1 cheque was not issued towards discharge of any debt or liability and in spite of the case of first respondent that it was issued towards balance amount due under the purchase of cement and Ext.P1 cheque was issued with reference to the account book and first respondent did not produce the account, courts below convicted revision petitioner based on the presumption under Section 139 of Negotiable Instruments Act which is not sustainable. Learned counsel also argued that in Ext.P4 notice it is the specific case of first respondent that revision petitioner purchased cement from his shop, which was given a go by at the time of evidence as the case then CRRP 3672/06 3 was that cement was supplied to his house and not purchased from the shop and this aspect was not properly appreciated by the courts below. 4. Learned counsel appearing for first respondent argued that appreciation of evidence was not perverse and in exercise of revisional jurisdiction, this court is not to re-appreciate the evidence. It was also argued that what was deposed by PW1 was that at the time when Ext.P1 cheque was issued he had nothing to do with Rajani Enterprises and therefore production of Ext.D8 is not very relevant and it is not a ground to disbelieve the evidence of PW1. Learned counsel also argued that courts below on proper appreciation of evidence disbelieved the case of revision petitioner with regard to under Ext.D3 receipt and in such circumstances, conviction of revision petitioner is perfectly correct. Learned counsel also argued that if production of account books are necessary, an opportunity may be granted to the first respondent to produce and for that purpose the case may be remanded. 5. On going through the judgments of the courts below and the evidence on record, it is absolutely clear that evidence was not properly appreciated. Both CRRP 3672/06 4 the courts were carried away by the presumption provided under Section 139 of Negotiable Instruments Act, without properly appreciating the evidence on record. Though there is a presumption under Section 139, it is only a rebuttable presumption. That presumption could be rebutted either by adducing evidence by the accused or bring on record the materials by cross examining the complainant or other relevant materials. It is the specific case of the first respondent in Ext.P4 notice, sent under Section 138(b) of Negotiable Instruments Act, that revision petitioner purchased cement from first respondent's shop and towards that amount due, Ext.P1 cheque was issued which was dishonoured when presented for encashment. But when first respondent was examined as PW1, he has given a go by to that case and deposed that cement was not purchased by revision petitioner from his shop but it was supplied to the house of first respondent. This change in the case is material in the light of other circumstances. What was contended by the revision petitioner was that he has dealings with Rajani Enterprises and in that transaction and a cheque was given earlier as security. CRRP 3672/06 5 To escape from the said defence, first respondent at the time of evidence was prepared to suppress his relationship with Rajani Enterprises. When PW1 was specifically asked whether Rajani Enterprises is not his firm his answer was in the negative. His case was not that he had no connection with Rajani Enterprises at the time when Ext.P1 cheque was issued. Hence the argument of the counsel cannot be accepted. If that was the answer given by PW1, the case would have been appreciated. On the other hand, he deposed that he has no dealings with the revision petitioner at any point of time and not at the time when Ext.P1 cheque was issued. By producing Ext.D8 revision petitioner established that Rajani Enterprises was a partnership firm and it was the first respondent and his son who are its partners. It is suppressing this fact, PW1 deposed that he has nothing to do with Rajani Enterprises. That itself establishes that no credibility could be attracted to the evidence of PW1. Therefore, based on the evidence of PW1 alone, the case that revision petitioner purchased cement and towards the amount due Ext.P1 cheque was issued, cannot be accepted. CRRP 3672/06 6 6. In spite of the fact that revision petitioner contended that Ext.P1 cheque was not issued towards discharge of liability and the case of first respondent that there are account books which establishes the transaction as well as the amount due as on the date of issuance of Ext.P1 cheque, such records were not produced. It is the specific case of PW1 that Ext.P1 cheque was written with reference to the balance shown in the account in the name of revision petitioner. If that be so, that is the most valuable evidence which should have been adduced by first respondent. Even though learned counsel appearing for first respondent sought a remand for this purpose, so long as he has no case that no opportunity was granted for adducing evidence, I do not find it necessary to remand the case as sought for. On the evidence, it is established that Ext.P1 cheque was not issued towards discharge of any debt or liability as claimed by first respondent. Therefore, conviction of revision petitioner is not sustainable. Revision petition is allowed. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act in C.C.215/2000 as CRRP 3672/06 7 confirmed in Crl.A.342/2004 is set aside. Revision petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by him stands cancelled. If any amount was deposited by the revision petitioner before the Magistrate consequent to the conviction he is entitled to get it back. M.SASIDHARAN NAMBIAR, JUDGE. uj.