IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 Crl.Rev.Pet.No. 1620 of 2003(C) ------------------------------- CRA.318/2002 of V ADDL.SESSIONS COURT, ERNAKULAM CC.202/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- T.R. GOPAKUMAR, PROPRIETOR, GOURI NANDANA HERBAL INDUSTRIES, DESOM, ALUVA. BY ADV. SRI.A.VIJAYAKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. THOMAS GEORGE, PROPRIETOR, CRISS CROSS COMMUNICATIONS, IIIRD FLOOR, XI/478, CHENCHERY BUILDINGS, M.G. ROAD, COCHIN-11. 2. STATE OF KERALA BY GOVT. PLEADER. ADV. SRI.K.S.MADHUSOODANAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1620 OF 2003 --------------------------------------------- Dated 21st July, 2010 O R D E R Petitioner, the accused in C.C.202/1999 on the file of Judicial First Class Magistrate-I, Ernakulam was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Petitioner challenged the conviction and sentence before Sessions Judge in Crl.A.318/2002. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner and first respondent were heard. CRRP 1620/03 2 3. Case of first respondent in the complaint filed before the learned Magistrate, which was taken cognizance, was that in November 1995 petitioner entrusted first respondent a proprietary concern, publicity work of his establishment, namely, Gowri Nandana Herbal Industries, Aluva. It is alleged that total amount payable for the preparation of leaf-lets, cartons, screen printing, stickers and to other advertisement was Rs.97,912/- and deducting the payment made Rs.61,912/- was to be paid along with Rs.4,600/- being interest calculated at 18% per annum. According to first respondent towards that amount petitioner issued Ext.P1 cheque dated 2/2/1996 for Rs.5,000/- and Ext.P2 cheque dated 6/2/1996 for Rs.47,000/- drawn in his account in State Bank of Travancore, CRRP 1620/03 3 Thottakkattukara Branch making first respondent to believe that cheques could be encashed. It is alleged that Ext.P1 cheque when presented for encashment was dishonoured on 7/2/1996 and it was intimated to the first respondent on 20/2/1996 and he contacted the petitioner and then petitioner remitted Rs.5,000/- by Demand Draft requesting to hold the cheque for discharge of the balance amount. It is also alleged that Ext.P2 cheque was presented for encashment and was dishonoured on 12/4/1996, which was intimated to first respondent on 17/4/1996. When first respondent intimated the dishonour to the petitioner on 24/4/1996, he paid Rs.10,000/- and thereafter issued Ext.P5 cheque dated 24/4/1996, for Rs.10,000/- requesting to hold all the three cheques for discharge of the balance amount within 45 days. CRRP 1620/03 4 It is alleged that Ext.P6 letter was sent to the petitioner informing that the balance payable is Rs.66,512/-. Petitioner without paying the amount sent Ext.P7 reply raising false contentions. First respondent thereafter presented Exts.P1 and P2 once again, along with Ext.P3 cheque and all of them were dishonoured for want of sufficient funds on 18/6/1996 which was intimated to first respondent on 4/7/1996. First respondent sent Ext.P11 notice demanding the amount covered by all the three cheques together and petitioner without paying the amount sent Ext.P12 reply and thereby committed the offence under Section 138 of Negotiable Instruments Act. Complaint was filed by first respondent personally. But when the evidence was recorded, instead of examining first respondent, PW1, his brother was examined as CRRP 1620/03 5 power of attorney holder appointed under Ext.P14 power of attorney. Ext.P14 was executed on 20/6/2001 whereunder first respondent appointed petitioner as General power of attorney to conduct the cases and it is not in respect of the complaints against the petitioner alone. Petitioner did not admit issuance of the cheque either in Ext.P7 reply to Ext.P6 notice or in Ext.P12 reply sent to Ext.P11 notice. It is contended by the petitioner that he had entrusted signed blank cheques as security to Radhakrishnan Nair, an employee of first respondent who had contacted the petitioner promising to do the work for lesser rate than what was being paid to the earlier firm and Exts.P2 and P5 cheques were not issued to the first respondent and they were not issued towards discharge of any debt CRRP 1620/03 6 or liability. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence of PW1 and for the failure of the petitioner to give evidence, accepted the evidence of PW1 and found the petitioner guilty. As rightly pointed out by the learned counsel appearing for the petitioner, it is clear from the judgments of learned Magistrate and learned Sessions Judge that material evidence were either overlooked or ignored. The evidence was not properly appreciated. In such circumstances, it is necessary to re-appreciate the evidence. Though learned counsel appearing for the first respondent argued that in exercise of the revisional powers, this court is not to re- appreciate the evidence, when it is absolutely clear that material evidence was overlooked and CRRP 1620/03 7 relevant aspects were not considered, this court though exercising revisional powers, is bound to re-appreciate the evidence. 5. A reading of the complaint shows that according to the first respondent total liability of the petitioner was Rs.97,912/-. Deducting the payment made, the balance payable was Rs.61,912/- in 1996. It is the specific case that out of that amount, Rs.4,600/- being interest calculated at 18% per annum was added and Exts.P1 and P2 cheques were issued. Ext.P1 is for Rs.5,000/- and Ext.P2 is for Rs.47,000/-. Former is dated 2/2/1996 and latter is dated 6/2/1996. Paragraph 2 of the complaint itself shows that Ext.P1 cheque was dishonoured on 7/2/1996, which was intimated to the first respondent on 20/2/1996. It is the allegation in paragraph 5 itself that on CRRP 1620/03 8 getting information of the dishonour first respondent contacted petitioner. Petitioner then paid Rs.5,000/- by demand draft and agreed that Ext.P1 cheque could be retained towards the liability. The date of payment of Rs.5,000/- by demand draft is not mentioned in the complaint. Ext.P13 series are the bills produced by the first respondent. Ext.P13 is the bill for Rs.6,282/- dated 8/1/1996. Ext.P13 bill shows that out of that bill, Rs.5,000/- received by demand draft on 19/2/1996 and Rs.1,000/- was received by cash and the balance is shown as Rs.282/-. Ext.P13 shows that payment of RS.5,000/- was by demand draft on 19/2/1996. This payment falsifies the case in the complaint that demand draft for Rs.5,000/- was paid, when petitioner was informed about the dishonour of the cheque, on getting CRRP 1620/03 9 information that cheque was dishonoured. Paragraph 5 of the complaint itself shows that first respondent was aware of the dishonour of the cheque only on 20/2/1996. If that be the case, demand draft could not have been given by the petitioner on the information received by the first respondent about dishonour of the cheque. Unfortunately, this aspect was not considered by both the courts below. 6. Along with Ext.P6 notice demanding Rs.66,512/- being the balance amount, first respondent sent Ext.P8 statement of accounts. Though PW1 deposed that Ext.P8 is the statement sent by the petitioner, on its face it is incorrect. Ext.P8 is a statement sent along with Ext.P6 notice by the first respondent as stated therein. Ext.P8 shows the amount, which according to first respondent was payable by CRRP 1620/03 10 the petitioner to him. Amount covered by Ext.P13(d) bill are shown in Ext.P8. Exts.P13 to 13(d) bills dated 9/2/1996 is for advertising the ceremony in connection with the death. It cannot be an advertisement in respect of the proprietary concern of the petitioner. When PW1 was questioned about Ext.13(d) bill, he has no explanation. Therefore, Ext.P13(d) bill is necessarily to be eschewed. If that be so, Rs.66,512/- claimed therein should be less by Rs.9,450/- covered by Ext.P13(d). Added to this, Ext.P8 bills shows that there was a claim for Rs.5,580/-, as per a bill dated 31/5/1996. Such a bill is not forthcoming. Complaint does not disclose any liability by the petitioner subsequent to the issuance of Exts.P1, P2 and P5 cheques. Therefore, Rs.5,518/- claimed as per bill dated CRRP 1620/03 11 31/5/1996 is also to be deducted from the amount. Though nothing is stated in Ext.P11 notice or at the time of evidence, with regard to the payment of Rs.6,000/-, Ext.P8 statement shows that there has been a payment of Rs.6,000/- on 31/5/1996 prior to the sending of Ext.P11 notice. Therefore, on the date of Ext.P11 notice, there should necessarily be a further deduction of Rs.6,000/- that what was claimed in Ext.P6. Evidence of PW1 does not give any light on the controversies. 7. Evidence of PW1 is to be appreciated in this backgrounds. As stated earlier, PW1 is not the complainant. He is only the brother of the complainant. Though he is also the power of attorney holder, by a power of attorney executed by first respondent five years after the lodging of the complaint, CRRP 1620/03 12 neither in the complaint nor in Ext.P14 power of attorney it is stated that PW1 was aware of the transactions involved in this case. Therefore, as rightly pointed out by the learned counsel appearing for the petitioner, evidence of PW1 can only be treated the evidence of a witness and not that of the complainant. PW1 has no case that he was present when Exts.P1, P2 and P5 cheques were issued. Even though PW1 has stated that petitioner was contacted over phone when Exts.P1 and P2 cheques were dishonoured, he has no case that he contacted the petitioner personally. If at all, it could only be hearsay evidence. PW1 has also no case that when Exts.P1, P2 and P5 cheques were issued, he was present. Question is in such circumstances, when petitioner contended that Ext.P1, P2 and CRRP 1620/03 13 P5 cheques were issued as blank cheques, is there any evidence to prove that cheques were issued by first respondent. There is no evidence. These aspects were also not considered by the learned Magistrate or the learned Sessions Judge. 8. Even on the admitted facts, the conviction for the offence under Section 138 of Negotiable Instruments Act will not stand. As far as Ext.P1 cheque is concerned, it is the specific case in the complaint itself that, when it was dishonoured on presentation first respondent intimated petitioner and he paid the amount by demand draft. Therefore, first respondent could not have presented the cheque again and prosecuted the petitioner for the offence under Section 138 on the very same cheque, unless it is proved that there was an CRRP 1620/03 14 agreement on the date of the payment of Rs.5,000/- by demand draft, that the said cheque cold be treated as for payment of the balance amount. There is no such case. Similarly, when it is the admitted case of the first respondent that Ext.P2 cheque was presented for encashment and dishonoured, first respondent intimated petitioner about the dishonour and then he paid Rs.10,000/- by cash. If that be so, out of Rs.47,000/- covered by Ext.P2 cheque petitioner paid Rs.10,000/- and what remains only RS.37,000/-. First respondent cannot present the same cheque again and lodge a complaint based on that cheque for Rs.47,000/-. Added to this, it cannot be believed that petitioner would again issue Ext.P5 cheque for Rs.10,000/- or that first respondent would receive that cheque for CRRP 1620/03 15 Rs.10,000/- when the total liability of the first respondent was Rs.50,000/- at that time. On appreciation of the entire evidence, it could only be found that Exts.P1, P2 and P5 cheques were not issued by the petitioner to the first respondent in discharge of an existing debt or liability. Hence conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is not sustainable. Revision is allowed. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act in C.C.202/1999 on the file of Judicial First Class Magistrate-I, Ernakulam as confirmed by Additional Sessions Judge, Ernakulam in Crl.A.318/2002 is set aside. Petitioner is found not guilty of the offence. He is acquitted. CRRP 1620/03 16 M.SASIDHARAN NAMBIAR, JUDGE. uj.