IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Crl.Rev.Pet.No. 2970 of 2007() ------------------------------ CRA.573/2006 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.1375/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOGGY JOSEPH, S/O. JOSEPH, AGED 54, CHERUKARA HOUSE, SUBRAMONYAPURAM, AVALOOKUNNU P.O. ALAPPUZHA. BY ADV. SRIR.AZAD BABU RESPONDENT(S): COMPLAINANT -------------------------- 1. P.C. VARGHESE,PUTHENPURACKAL, THATHAMPALLY,ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. JAYAKRISHNAN, PUBLIC PROSECUTOR SRI.ABDUL JALEEL.A FOR R1 SMT.M.A.SULFIA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2970 of 2007 --------------------------------------- Dated this 07th day of July 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track-2, Alappuzha in criminal appeal no.573 of 2006 confirming conviction and sentence of petitioner for offence punishable under Sec.138 of Negotiable Instruments Act. According to respondent No.1, petitioner owed Rs.100000/- to him and for repayment of that amount, issued Exts.P1 and P2, cheques for Rs.50000/- each. Those cheques were dishonoured for insufficiency of funds. Respondent No.1 served statutory notice on petitioner. Since petitioner did not pay the amount he filed complaint against petitioner. He gave evidence as PW1 and proved as Exts.P1 to P11. Exts. P2 and P3 are produced to prove the dishonour of the cheques. Issue and service of notice are proved by Exts.P6 to P11. According to petitioner he was running a LPG gas unit and there was some dispute between him and local people regarding running of that unit. Consequently he had to keep away from his shop during which time his records including cheque books were kept in the shop. His employees were running the shop. During that time the cheques were misused by the employees with the connivance of respondent No.1 and others. Petitioner filed a schedule of witnesses and documents in the trial court. Petitioner wanted examination of Convener of the Samithi Crl.R.P.No.2970 of 2009 2 formed for protection against the functioning of the Unit and manager of the bank as witnesses of his side. He also wanted documents to be proved. Certain documents were to be produced by the manager and Convener of the Samithi. According to the petitioner he was not given opportunity to adduce evidence in his defence. Learned counsel submitted that failure to grant opportunity to adduce evidence was specifically raised as a ground in the memorandum of appeal but that has not been considered by learned Additional Sessions Judge. 2. I have gone through the records. I heard counsel on both sides. It is seen from the evidence of respondent No.1 as PW1 that he was cross examined in the line suggested by the petitioner and above stated as to how else the cheques happened to be in the custody of respondent No.1. He denied the suggestion. It is seen that though petitioner had produced a schedule of witnesses and documents in the trial court, there was a representation on 18-10-06 that there is no defence evidence and accordingly evidence was closed. I find from the memorandum of appeal that a specific ground was raised that petitioner did not get opportunity to adduce evidence. Having regard to the nature of contention raised by petitioner and the defence he has already taken up with, I consider it proper and necessary to give petitioner an opportunity to adduce evidence in defence. 3. Learned counsel for respondent No.1 submitted that Crl.R.P.No.2970 of 2009 3 respondent No.1 is hard placed for money and that postponement of the case would further delay the proceedings. I bear in mind it is within the power of the trial court to award appropriate compensation in case there is delay in disposal of the case. For the reasons stated above I am inclined to give an opportunity to petitioner to adduce defence. Resultantly this revision is allowed. Conviction and sentence of petitioner are set aside and the case is remitted to the trial court for fresh consideration of the issue regarding execution of the cheque. It is made clear that the findings of the courts below regarding cause of dishonour and issue and service of notice are not being disturbed by this court. Parties shall appear in the trial court on 20-08-2009. Learned magistrate shall give both sides an opportunity to adduce evidence. THOMAS P JOSEPH, JUDGE Sbna/