IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.Rev.Pet.No. 155 of 2007(D) ------------------------------ CRA.568/2006 of V ADDL.SESSIONS COURT, ERNAKULAM ST.1009/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. ........................................ REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- C.Y.SKARIAH, S/O.YOHANNAN, AGED 41 YEARS, CHENAYAPPILLIL HOUSE, PULINTHANAM P.O., POTHANIKADU- VIA, ERNAKULAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SMT.A.KUMARI MINI RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. JAMES SCARIA, S/O.SCARIA, CHENAYAPPILLIL HOUSE, PULINTHANAM P.O., POTHANIKADU- VIA., ERNAKULAM. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. ADV.SRI.PEEYUS A.KOTTAM BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 155 OF 2007 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in S.T.1009 of 2004 on the file of Judicial First Class Magistrate, Kothamangalam. First respondent contended that petitioner borrowed Rs.2,00,000/- and towards its repayment, issued Ext.P1 cheque drawn in his account maintained in Pulinthanam branch of Pothanicad Farmers Co-operative Bank Ltd and when the cheque was presented for encashment, it was dishonoured under Ext.P2. Ext.P3 notice was sent, demanding the amount covered by Ext.P1 cheque. It was received by the petitioner under Ext.P5. But he did not pay the amount and thereby committed the offence. First respondent lodged the complaint alleging commission of an offence under Section 138 of N.I.Act. Petitioner, on appearance, pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P7 were marked. On the side of petitioner, three witnesses were examined and Exts.D1 and D2 were marked. The defence was that petitioner did not borrow any amount from first respondent and did not issue Ext.P1 cheque towards discharge of any debt. According to CRRP 155/2007 2 revision petitioner, DW1 Prabha had borrowed Rs.15,000/- from first respondent and at that time as security, he obtained signed blank cheque of the petitioner and Ext.P1 is created misusing the blank cheque. 2. Learned Magistrate, on the evidence, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.2,00,000/- and in default, simple imprisonment for six months. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.568 of 2006. Learned Sessions Judge, on reappreciation of evidence confirmed the conviction, but modified the sentence to simple imprisonment for three months, in addition to a compensation of Rs.3,00,000/-. Revision petition is filed challenging the conviction and sentence. 3. Learned counsel appearing for revision petitioner and first respondent were heard. 4. The argument of the learned counsel appearing for revision petitioner is that courts below did not properly appreciate the evidence and wrongly convicted the petitioner for the offence under Section 138 of N.I.Act. It was argued that as CRRP 155/2007 3 per the evidence of PW1, petitioner borrowed Rs.2,00,000/- on 2.1.2004 at about 8 am and towards its repayment, issued Ext.P1 cheque on 4.3.2004 and Ext.D1 and D2 records got summoned from the K.S.R.T.C, where petitioner is employed as a driver, establish that he was on duty at that time and therefore case of PW1 that petitioner borrowed Rs.2,00,000/- on 2.1.2004 or issued Ext.P1 cheque on 4.3.2004 should not have been believed. Learned counsel also argued that Ext.D1 and D2 are the official records and were produced from the official custody and in such circumstances, without further evidence, courts below should have accepted the same especially when DW3, the then Assistant Transport Officer was examined and deposed that petitioner was on duty at that time. Learned counsel appearing for first respondent argued that as rightly found by courts below, Ext.D1 and D2 were not proved and therefore no reliance could be placed on Ext.D1 and D2 and based on Ext.D1 and D2, the case of first respondent cannot be disbelieved and there is no reason to interfere with the factual finding of courts below. 5. Ext.P1 cheque is dated 4.3.2004. Admittedly Ext.P1 cheque was issued by revision petitioner. His case is that it was issued as a blank cheque and that too, as a security for the loan CRRP 155/2007 4 obtained by DW1 and at that time a blank cheque of the petitioner was given. Evidence of DW1 was that he had borrowed Rs.15,000/- from first respondent and when he approached first respondent for that loan, he wanted DW1 to bring revision petitioner also and insisted for a blank cheque from revision petitioner and DW1 had given a signed stamped blank paper and borrowed Rs.15,000/- and later paid that amount but first respondent did not return back the document and at that time there was dispute between revision petitioner and first respondent. 6. The argument of learned counsel is that when revision petitioner was attending his duty both on 2.1.2004 when the loan was allegedly granted and on 4.3.2004, when the cheque was allegedly issued, the case of first respondent should not have been believed by learned Magistrate and learned Sessions Judge and therefore the conviction is to be set aside. 7. Ext.P4 notice was sent by first respondent demanding the amount covered by the dishonoured cheque. Petitioner received it under Ext.P5. He did not sent any reply. In the ordinary human conduct, if petitioner had given a signed blank cheque to first respondent as security for the loan obtained by CRRP 155/2007 5 DW1 and later he received a notice demanding Rs.2,00,000/- under that cheque, petitioner would have sent a reply denying the allegation and stating that Ext.P1 cheque was issued as a blank cheque and that too, as security for the loan obtained by DW1. The argument of learned counsel is that as petitioner and first respondent are close relatives, revision petitioner, after receipt of notice, talked to first respondent and he promised not to file a complaint and therefore reply was not sent. But such an explanation was not there when revision petitioner was questioned under Section 313 of Code of Criminal Procedure. Even when PW1 was cross examined, there was no such suggestion. 8. When PW1 deposed that Rs.2,00,000/- was borrowed by revision petitioner on 2.1.2004, and later issued Ext.P1 cheque towards is repayment, on 4.3.2004, it was not suggested to PW1 that revision petitioner was attending the duty at time mentioned by PW1. If in fact revision petitioner was aware at that time that he was not on duty, he would have definitely put that question to PW1. The submission of learned counsel appearing for petitioner is that this was an omission committed by learned counsel, when petitioner was questioned under Section 313 of CRRP 155/2007 6 Code of Criminal Procedure and he was asked whether he has anything more to say on the case, he would have stated that he was attending the duty on both days. Even though in answer to that question, petitioner had explained that he was a surety to the loan obtained by first defendant and for that loan, first respondent obtained signed blank cheque leaves from him as well as DW1, he has no case that he was attending the duty on the dates on which PW1 deposed that he had borrowed the amount and issued the cheque. As against the said case at the time of questioning under Section 313 of Code of Criminal Procedure and when examined as DW1, petitioner has no case that he had issued any signed blank cheque. His only case was that first respondent insisted for a signed blank cheque from revision petitioner and it was given. It is in such circumstances, DW1 was cross examined whether he was aware of any other transaction between revision petitioner and first respondent so that Ext.P1 could be a cheque issued under another transaction relating to which DW1 has no knowledge. 9. The question is whether evidence of DW1 that a signed blank cheque was given by revision petitioner can be believed. On going through the evidence of DW1 it is not possible to rely CRRP 155/2007 7 his version. According to DW1, when he had paid the amount borrowed from first respondent, there was a dispute with regard to interest. But his case is that the said dispute was between revision petitioner and first respondent. Learned counsel appearing for revision petitioner argued that it could be for non return of the signed blank cheque given earlier as security. But DW1 had not spoken about such a dispute and the dispute spoken by DW1 is regarding the interest, which is payable by DW1 and not by revision petitioner. Therefore it is not possible to believe that version of revision petitioner. 10. The trumpcard of learned counsel for accused/revision petitioner is Ext.D1 and D2 which was got summoned from K.S.R.T.C office. DW2 though examined, did not disclose any fact, except the fact that he had produced the document. DW3, A.T.O who took charge only in 2006 had no personal knowledge with regard to the entries in Ext.D1 or D2. DW3 , based on the entry in Ext.D1 and D2, deposed that revision petitioner was on duty both on 2.1.2004 and on 4.3.2004 at the time when PW1 deposed that revision petitioner had borrowed the amount and later issued the cheque. If Ext.D1 and D2 are proved to be the correct entries, then case of first respondent that CRRP 155/2007 8 petitioner obtained the loan on 2.1.2004 and later issued the cheque on a particular occasion cannot be true. 11. From the facts and circumstances of the case, interest of justice warrants that an opportunity is to be given to revision petitioner to prove the entries in Ext.D1 and D2. Therefore, in view of the opportunity granted, conviction of petitioner is set aside. C.C.2211 of 2001 is remanded to Additional Chief Judicial Magistrate, Ernakulam. Petitioner is granted an opportunity to prove the entries in Ext.D1 and D2 by examining the person who entered the entries or if he is not available, the person who can prove the handwriting. Learned Magistrate is directed to dispose the complaint in the light of the evidence. Parties are directed to appear before the learned Magistrate on 3.12.2008. Send back the records. M.SASIDHARAN NAMBIAR, JUDGE lgk/-