IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 Crl.Rev.Pet.No. 1446 of 2004(A) ------------------------------- CRA.127/2001 of ADDL. SESSIONS COURT (ADHOC), KALPETTA CC.78/1996 of JUDL.MAGISTRATE OF FIRST CLASS, MANANTHAVADY .................... REVN. PETITIONER: APPELLANT/ACCUSED ---------------------------------------------------------------- N.K.SUNIL, S/O.KUNJIKANNAN, NEELATH HOUSE, TEMPLE GATE P.O., THALASSERY. BY ADV. SRI.JOHN K.GEORGE SRI.P.K.VARGHESE RESPONDENTS: COMPLAINANT & STATE -------------------------------------------------------------- 1. ASHRAF, S/O.KUNJAMMAD, KAZHICHAKKANDI HOUSE, KELLOOR P.O., MANANTHAVADY TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PHILIP M.VARUGHESE PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== Crl.R.P.No.1446 of 2004 ================================== Dated this the 26th day of February, 2008. ORDER The revision petitioner stands convicted for offences punishable under Sections 420 and 471 I.P.C. and sentenced to undergo rigorous imprisonment for six months and to pay fine. 2. The first respondent filed a complaint alleging that the revision petitioner/accused committed the offence under Section 138 of the Negotiable Instruments Act. The court of first instance took cognizance of the complaint and at trial, the complainant spoke of the necessary ingredients constituting offence punishable under Section 138 of the Negotiable Instruments Act. However, it turned out that the cheques in question were not issued from the account maintained by the accused and that the cheques were issued from some CRRP1446/2004 -:2:- other account using cheque leaves which could not be referable to the accused. On such premise, the trial court, taking the view that offences under Sections 420 and 417 IPC have been made out, framed charges under those provisions and offered opportunity to the accused to further cross-examine P.Ws. 1 to 3. P.W.3 was recalled and cross- examined while others were not. The trial court took the view that since the issuance of Ext.P1 cheque is proved, it is for the defence to establish any evidence that there was no deceitful intention at the time of issuing the cheque and as to how the accused came in possession of a cheque of another person in yet another account. On such basis, putting the burden on the accused and holding that such burden has not been discharged, the trial court convicted the accused under Sections 420 and 471 IPC. His appeal has been dismissed. CRRP1446/2004 -:3:- 3. A reading of the evidence of P.Ws.1 to 3 would show that whatever has been spoken to by them, P.W.1 in particular, only contain such allegations as would constitute the necessary ingredients to sustain the complaint under Section 138 of the NI Act. P.W.1, the defacto complainant did not speak about the necessary ingredients that would constitute an offence punishable under Sections 420 or 471 IPC. The defence did not choose to cross-examine those witnesses though an opportunity to re-cross-examine was offered. Obviously, this was because the prosecution did not bring in any further material through any re-chief- examination of the complainant, or otherwise, to sustain the charge under Sections 420 or 471 IPC, by adducing legal evidence. Under such circumstances, it was impermissible to enter conviction merely by calling upon the defence to prove that there was no deceitful intention at the time of issuing the cheque. For the aforesaid CRRP1446/2004 -:4:- reasons, the impugned judgment, conviction and sentence cannot be sustained. In the result, this revision is allowed setting aside the impugned judgment, conviction and sentence imposed by the courts below and the accused is acquitted. Bail bonds stand cancelled. Thottathil B.Radhakrishnan, Judge. sl.