IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.Rev.Pet.No. 3544 of 2008() ------------------------------ CRA.680/2007 of SESSIONS COURT, KOZHIKOE ST.1873/2006 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- MATHEW ANATHARAYIL VIIITH BLOCK KAKKADAMPOYIL P.O. KOODARANHI KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------- 1. C. RAJAN M/S.PALCO GLAMOUR 1368/18, PUTHIRYARA KOZHIKODE 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI..C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3544 OF 2008 =========================== Dated this the 4th day of November,2008 ORDER Petitioner is the accused and first respondent the complainant in S.T.1873/2006 on the file of Judicial First Class Magistrate, Kozhikode. First respondent lodged the complaint claiming that towards the repayment of Rs.5 lakhs, due from the petitioner, he issued Ext.P1 cheque drawn in his account maintained in Kombara Branch of Canara Bank dated 20.8.2005 and when it was presented for encashment, it was dishonoured for want of sufficient funds and inspite of notice served on the petitioner, he did not pay the same and thereby committed the offence and sent a reply denying the liability. Petitioner appeared and pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P4 were marked. Petitioner was examined as DW1. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and CRRP3544/2008 2 sentenced for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.A.680/2007. Learned Sessions Judge on the evidence found that petitioner in the complaint as well as in the proof affidavit did not plead or depose for what liability Ext.P1 cheque was issued. Learned Sessions Judge found that inspite of Ext.P4 reply sent by the petitioner denying any transaction with the first respondent, first respondent did not mention the relevant fact in the complaint or proof affidavit. It was found that when PW1 was cross examined it was brought out that there was an agreement for sale of the property belonging to the petitioner to first respondent and advance was received and towards repayment of that advance, Ext.P1 cheque was issued. Learned Sessions Judge found that in such circumstance an opportunity is to be granted to first respondent to produce the documents which PW1 deposed that is in his possession and hence remanded the matter to CRRP3544/2008 3 the learned Magistrate. The order of remand is challenged in the revision. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that inspite of Ext.P4 reply notice, first respondent did not plead what was the transaction between the petitioner and first respondent and towards what liability Ext.P1 cheque was issued. It was also argued that even when the proof affidavit was filed, first respondent did not mention the alleged agreement for sale or the advance received or the fact that Ext.P1 cheque was issued towards repayment of the advance amount received and first respondent had no case that he did not get opportunity to produce the relevant documents before the learned Magistrate or atleast before the appellate court and therefore an opportunity should have been granted. Learned counsel also argued that if such an opportunity is granted, first respondent would create documents and produce CRRP3544/2008 4 before the Magistrate and therefore in the interest of justice learned Sessions Judge should not have granted a further opportunity and for that purpose should not have remanded the case. Learned counsel argued that the burden is on the complainant to plead and prove his case and it is not for the revision petitioner to prove the case and in such circumstance, the order is to be set aside. 4. When complaint was filed and learned Magistrate disposed the complaint, the legal position was that when a cheque was issued and execution of the cheque is proved, presumption provided under section 139 of Negotiable Instruments Act is to be drawn. In such circumstance, failure to plead the original transaction in the complaint should not have been taken as a reason to interfere with the order of remand passed by the learned Sessions Judge. Eventhough first respondent did not plead the details of the original transaction and has not stated about it in the proof affidavit, in cross CRRP3544/2008 5 examination, it was brought out that there was an agreement for sale executed by petitioner in favour of the first respondent and the amount covered by the dishonoured cheque is the amount which was received by the revision petitioner from the first respondent as advance. In cross examination PW1 admitted that he is in possession of those documents. But he was not directed to produce the documents. It is in such circumstance, leaned Sessions Judge felt that an opportunity is to be granted to first respondent to produce those documents and prove his case. 5. The question is whether the discretion so exercised by the Sessions Judge is to be interfered with. The argument of the learned counsel is that if that opportunity is granted, first respondent may create or forge documents and produce them before the learned Magistrate. I do not find that production of forged documents would help the first respondent. Petitioner is definitely entitled to contend, if a forged document is produced that it CRRP3544/2008 6 was not executed by him. If a document is produced without proving its execution, it cannot be relied on. If revision petitioner has a case that the documents, if any produced by the complainant is not genuine, he is entitled to take up the defence. In that case execution of the documents should necessarily be proved by first respondent. In such circumstance, I do not find that interest of justice will be defeated if the opportunity granted by learned Sesisons judge is sustained by this court. In such circumstance, petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006