IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.Rev.Pet.No. 2261 of 2004(C) ------------------------------- CRA.156/2002 of II ADDL. SESSIONS COURT, PALAKKAD CC.285/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- R.KRISHNAKUMAR, S/O.RAMACHANDRAN, AYYAKKAD, ALATHUR. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.SOJAN MICHEAL RESPONDENT(S): STATE AND COMPLAINANT. ------------------------------------- 1. STATE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CHITTILANCHERRY SMALL HOLDER RUBBER PRODUCER'S SOCIETY, CHITTILANCHERRY, REP. BY ITS PRESIDENT NARAYANAN. R1 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR SRI.V.V.ASOKAN FOR R2 SMT.S.AMINA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.2261 OF 2004 --------------------------------------------- Dated 21st June, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act in C.C.285/1998 by Judicial First Class Magistrate, Alathur. Petitioner challenged the conviction and sentence before Sessions court, Palakkad in Crl.A.156/2002. Learned Additional Sessions Judge on re- appreciation of the evidence confirmed the conviction but modified the sentence to simple imprisonment for six months and maintained the compensation of Rs.3,50,000/- passed by the learned Magistrate. Revision is filed challenging the conviction and sentence. CRRP 2261/04 2 2. Learned counsel appearing for the petitioner and learned counsel appearing for the second respondent were heard. 3. Second respondent lodged the complaint contending that the second respondent the President authorized to file the complaint for the registered society and the society is collecting rubber products from its members and selling them and petitioner purchased rubber from the society during the period from 21/12/1996 till 5/7/1997 and towards Rs.7,02,540/- due from the petitioner to the society, Rs.3,55,000/- was paid and for the balance of Rs.3,47,540/- Ext.P15 cheque was issued drawn in his account maintained in Vadakkencherry branch of Dhanalakshmi bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds. The second respondent sent Ext.p18 CRRP 2261/04 3 lawyer notice demanding the amount covered by Ext.P15. It was received by the petitioner. Instead paying the amount, he sent Ext.P20 reply denying the liability and thereby committed the offence. Petitioner pleaded not guilty. Defence raised by the petitioner was that Ext.P15 cheque was not issued to the society and it was not issued towards discharge of any dent or liability and the cheque was entrusted as a blank cheque and as security to Joseph Mathew, who is one of the Directors of the society and Joseph Mathew and the President of the society who was examined as PW1, are having independent businesses and petitioner has no transaction with the second respondent society and he was purchased rubber from Joseph Mathew and it was in 1996 he had given blank cheque to Joseph Mathew as security and due to subsequent ill feeling, he handed CRRP 2261/04 4 over the cheque to the President of the society in 1998 who clandestinely filled up the cheque for Rs.3,47,540/- and it was dishonoured and petitioner is not liable to pay any amount to the society and has not committed the offence. 4. Learned Magistrate relying on the evidence of the President of the society as PW1 and Exts.P1 to P24 and Exts.D1 to D3 produced by the petitioner, found that Ext.P15 cheque was issued towards the amount due to the society for purchase of rubber and it was dishonoured for want of sufficient funds and in spite of demand, amount was not paid and petitioner thereby petitioner committed the offence. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the findings. 5. Learned Senior counsel pointed out that courts below did not properly consider the CRRP 2261/04 5 contentions raised or the evidence and a perusal of Ext.D1 stock register of the society establishes that no reliance can be placed on the same. It was pointed out that neither the evidence of PW1, nor Exts.P4 to P14 establishes that the amount covered by Ext.P15 cheque is due and therefore, courts below should not have convicted the petitioner. Revision Petitioner has also produced certain documents along with revision and thereafter some more documents along with Crl.M.A.12825/2009 contending that those documents are relevant to consider the correctness of the findings of the courts below as well as the veracity of the evidence of PW1. 6. Learned counsel appearing for the second respondent argued that though petitioner would contend that Ext.P15 cheque was issued as a blank cheque and that too as security to Joseph Mathew, no evidence was adduced Joseph CRRP 2261/04 6 Mathew was not examined and on the evidence, courts below were fully justified in relying the evidence of PW1 and Exts.P1 to P14 and convicting the petitioner for the offence under Section 138 of Negotiable Instruments Act. Learned counsel would also submit that the documents now produced before the revisional court should have been produced before the trial court and at this stage those documents cannot be looked into. 7. According to the second respondent Ext.P15 cheque was issued by the petitioner, towards discharge of the balance amount payable by the petitioner to the second respondent society for purchase of rubber. In the complaint though second respondent did not mention either the quantity of the rubber purchased or the rate payable for the respective purchases, and had given only the CRRP 2261/04 7 details of the amount payable on the respective dates and shown the total amount payable is Rs.7,02,540/-. Deducting Rs.3,55,000/- received on six different dates, as shown in the complaint, according to the second respondent for the balance, Ext.P15 cheque was issued. Petitioner would contend that he has no dealings with the society and did not purchase any rubber and is not liable to pay any amount. Second respondent has relied on Exts.P4 to P14 photocopies of the entries of the stock register. That original stock register itself was subsequently marked at the instance of the petitioner, as Ext.D1. In view of the serious challenge raised against the relevant entries in Exts.P4 to P14, Ext.D1 register as such is to be examined. 8. On going through Ext.D1 register, it cannot be said that on the available evidence CRRP 2261/04 8 the amount as claimed by second respondent was due on the respective dates. To arrive at a finding whether the amount, as shown in the complaint in the respective dates were due, some more evidence is necessary. On hearing the learned Senior counsel appearing for the petitioner and learned counsel appearing for the second respondent, it is clear that courts below did not properly consider the evidence. Even though Ext.P15 cheque was marked, the amount covered by the dishonoured cheque is claimed to be the balance amount payable by the petitioner to the second respondent society. Whether on the date of issuance of the cheque, the amount shown therein is due from the petitioner to the second respondent society is as relevant and material aspect to be decided. In the light of the unsatisfactory nature of the evidence, it is necessary to remand the CRRP 2261/04 9 case back to the trial court, so that second respondent can let in further evidence, if they so wishes and the petitioner could also adduce further evidence in the light of the documents now produced before the court as submitted by both the parties. In such circumstances, revision is allowed in part. The conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act, as confirmed by the Sessions court, is set aside. Case is remanded to Judicial First Class Magistrate, Alathur with a direction to grant opportunity to the parties to let in further evidence and dispose the case in accordance with law. Documents produced by the petitioner before this court also be sent to the trial Magistrate along with the records. Send the records immediately to the Magistrate. Parties are directed to appear CRRP 2261/04 10 before the learned Magistrate on 27/7/2010. Learned Magistrate is directed to dispose the case expeditiously. M.SASIDHARAN NAMBIAR, JUDGE. uj.