IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 Crl.Rev.Pet.No. 1183 of 2009 () ------------------------------ AGAINST THE ORDER DATED 20/12/2008 IN CRA. 152 /2008 IN CRRP.83/2008 of VI ADDL. DIST. & SESSIONS COURT, ERNAKULAM CC.448/2000 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER/ESPONDENT/ACCUSED ------------------------------------------------------------- KUTTAN, S/O.THANKAPPAN, NEDIYIRIPPIL HOUSE, B/H SUB-REGISTRY OF NARAKKAL, NARAKKAL. BY ADVS. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN RESPONDENTS/ REVN. PETITIONER & STATE/COMPLAINANT --------------------------------------------------------------------------------------- 1. SMT.SHYLAJA, D/O.PARAMAN, KALATHIL HOUSE, NARAKKAL. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.H.ABDUL AZEEZ R2 BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1183 of 2009 ------------------------------- Dated this the 27th day of September, 2010. O R D E R The revision petitioner is the accused in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act. In this revision petition he challenges his conviction and sentence imposed by the courts below. 2. The case of the complainant is that altogether a sum of Rs.3,65,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued two cheques, one for Rs.2 lakhs and another cheque which was dated 15.5.2000, for a sum of Rs.1,65,000/-. According to the complainant the cheque dated 15.5.2000 for a sum of Rs.1,65,000/- ie., Ext.P1 cheque, dishonoured which when presented for encashment, for the reason that there was no sufficient fund to honour the cheque. According to the complainant, on receipt of the dishonour memo, though the accused was informed about the dishonour of the cheque and 2 Crl. R.P.No.1183 of 2009 demand was made for the payment of the amount covered by the cheque, no amount is paid inspite of the receipt of such notice. Thus according to the complainant, the accused has committed an offence punishable u/s.138 of Negotiable Instruments Act and with the said allegation, the complainant approached the Judicial First Class Magistrate Court-I, Kochi, and cognizance was taken for the offence punishable u/s.138 of NI Act. During the course of the trial, the complainant herself was examined as PW1 and Exts.P1 to P9 were marked. From the side of the defence, Dws.1 to 3 are examined and Exts.D1 was produced and marked. The trial court by its judgment dated 14.1.2003 in C.C.No.448/00 found that, the accused is guilty u/s.138 of NI Act and accordingly sentenced him to undergo simple imprisonment for 3 months and also directed to pay a sum of Rs.1,65,000/- to the complainant as compensation. Though the said verdict was challenged by filing Crl.A.No.144/05, the appellate court dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner and challenging the 3 Crl. R.P.No.1183 of 2009 above conviction and sentence the accused filed Crl.R.P.No.1618/04 before this court and this court remanded the matter back to the trial court and this court set aside the appellate court judgment and the trial court judgment, for fresh consideration. 3. It is also relevant to note that, though there was another case between the same parties connected with the cheque for an amount of Rs.2 lakhs, the same was ended in acquittal. Initially, the trial court convicted the accused therein, who is the revision petitioner herein and the challenge against that conviction also failed in appeal, against which revision petition was filed by the very same accused and that revision petition as also disposed of along with Crl.R.P.No.1618/04 and accordingly after setting aside the conviction and sentence that matter was also remanded back to the trial court. 4. Thus after the remand of both the cases as per the orders of this court, the matter was again taken up for consideration in the trial court during which, in this case PW1 4 Crl. R.P.No.1183 of 2009 was re-examined and Exts.P8 and P9 were produced. From the side of the defence, the accused was examined as an additional defence witness/DW3 who was also questioned u/s.313 of Cr.P.C. Thus on the basis of the direction issued by this court, the learned Magistrate considered the matter afreshly and finally pronounced the judgment dated 18.1.2010 in C.C.No.448/00, by which the learned Magistrate has found that the essential ingredient of offence of S.138 of the NI Act connected with Ext.P1 cheque, are attracted to the extent of consideration of Rs.65,000/- and the accused is to be held liable u/s.138 of NI Act connected with Ext.P1 cheque to that extent. Accordingly ,the accused is found guilty for an offence u/s.138 of NI Act and he is sentenced to undergo simple imprisonment for 6 months and also directed to pay a sum of Rs.65,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. After the trial, the learn Magistrate has found that the accused is not guilty in the other case and accordingly he is acquitted therein. 5. Challenging the conviction and sentence in 5 Crl. R.P.No.1183 of 2009 C.C.No.448/00, the accused preferred an appeal as Crl.A.No.152/08. Against the very same verdict of the learned Magistrate and against the findings to the extent that, the liability of the accused is only for Rs.65,000/- and on the ground of inadequate sentence, the complainant has preferred a revision petition before the Sessions court as Crl.R.P.No.83/08. The learned Sessions Judge disposed of the above Crl.A.No.152/08 and Crl.R.P.No.83/08 by a common judgment dated 20.12.2008, by which the learned Sessions Judge allowed the revision petition preferred by the complainant and dismissed the appeal of the accused. Thus the conviction is confirmed but the sentence is modified and accordingly the accused/revision petitioner is sentenced to undergo simple imprisonment for one month and he is also directed to pay a fine of Rs.1,65,000/- and in default he is directed to undergo simple imprisonment for 5 months. It is also ordered that if the fine amount is paid or recovered, it shall be paid to the complainant as compensation. 6. It is against the above common judgment of the Sessions 6 Crl. R.P.No.1183 of 2009 Court, the accused preferred this revision petition challenging his conviction and sentence and also challenging the interference made by the Sessions Court, especially with respect to the liability fixed by the appellate court based on Ext.P1 cheque. 7. I have heard Adv.Sri.K.I.Abdul Rasheed, the learned counsel appearing for the revision petitioner and also Sri.T.H.Abdul Azeez, the learned counsel appearing for the complainant-who is the 1st respondent in this revision petition. I have also gone through the judgments of the courts below and also perused the evidence and other materials. 8. Adv.Sri.K.I.Abdul Rasheed, the learned counsel for the revision petitioner vehemently argued that, the complainant has miserably failed to establish the essential ingredient of S.138, since she had failed to prove the execution and issuance of Ext.P1 cheque. According to the learned counsel, the revision petitioner had succeeded in disproving the case of the complainant and in discharging his burden to rebut the presumptions. It is also the contention of the learned counsel 7 Crl. R.P.No.1183 of 2009 that, though the trial court has found that as per Ext.P1 cheque, the liability is only for a consideration of Rs.65,000/-, but the Sessions Court without any jurisdiction interfered with and gone to the extent of saying that the liability is Rs.1,65,000/-. The learned counsel pointed out that, the above findings of the learned Sessions Judge, in excess of the revisional jurisdiction is liable to be interfered with, since the revision was preferred by the complainant challenging only the inadequate sentence imposed by the trial court. 9. On the other hand, the learned counsel for the respondent submitted that the judgment of the learned Sessions Judge fixing the liability of the accused, after revising the direction or finding of the trial court is perfectly legal and valid and no interference is called for. 10. I have carefully considered the arguments advanced by both the counsels for the contesting parties and also gone through the evidence and materials on record and the judgments of the court below. 8 Crl. R.P.No.1183 of 2009 11. The specific case of the complainant is that, towards the discharge of the liability owed to the complainant, the accused has issued Ext.P1 cheque dated 15.5.2000 for an amount of Rs.1,65,000/-, which when presented for encashment dishonoured and the amount covered by the dishonoured cheque was not paid inspite of the formal demand made on behalf of the complainant. According to the complainant, the above amount of Rs.1,65,000/- was borrowed by the accused and towards the discharge of the said liability issued Ext.P1 cheque in the year 1994. It is a fact beyond dispute that the complainant is a maid servant and the complainant as well as the accused are not strangers. The case of the accused is to the effect that, he did not borrowed the amount as claimed by the complainant but on the other hand he had received only an amount of Rs.65,000/- during the year 1994 and at the time of obtaining the said amount, he had issued two blank cheques and a signed blank paper. This court at the time of remanding the matter as per the judgment dated 5.6.2007 in 9 Crl. R.P.No.1183 of 2009 Crl.R.P.No.1618/04, it has observed that on the reverse of Ext.D1 complaint, there is an undertaking allegedly signed by both the sides that, the accused shall repay @ Rs.500/- as instalment, though PW1 has denied the writing on the reverse of Ext.D1. But this court has observed that DW1 has not admitted the alleged agreement, which was made on the reverse side of Ext.D1 and further found that if the amount are to be repaid @ Rs.500/- per month, it would take 60 years to discharge the entire liability of Rs.3,65,000/- and also found that the accused has sent Ext.P6 reply notice reiterating that he had borrowed only Rs.65,000/- and the same has been repaid and the accused has not testified before the court. After considering the above facts and on the basis of the observation referred above, this court found that the reconsideration of the matter is required and further evidence if any, from the part of both the sides and accordingly after setting aside the orders of the courts below, the matter is remanded back to the trial court for fresh adjudication, after permitting the parties to adduce any further evidence if they 10 Crl. R.P.No.1183 of 2009 so desire. It is after such remand, the trial was resumed and the trial court adopted a view that the case set up by the complainant, the preponderance of probability suggest that Ext.P1 cheque was not executed by the accused infavour of the complainant with an intention to bind himself liable for Rs.1,65,000/-. Accordingly, the trial court concluded that the accused can not be held to have issued Ext.P1 cheque for consideration of Rs.1,65,000/- and it is further found that, at the very same time the accused owed a sum of Rs.65,000/- to the complainant and to that extent the accused can be held liable u/s.138 of NI Act on the basis of Ext.P1 cheque. 12. Gong by evidence of PW1, the complaint and the defence taken by the accused, it can be seen that both the complainant as well as the accused have admitted that there was a transaction among them. This case is covered by Ext.P1 cheque for an amount of Rs.1,65,000/-. When the complainant alleged that the accused borrowed a sum of Rs.1,65,000/-, the specific case of the accused is that he had obtained only 11 Crl. R.P.No.1183 of 2009 Rs.65,000/- and at that time he had issued two blank signed cheques and also signed blank papers. It is also the case of the defence that, the amount borrowed was repaid by the accused with interest. The case of the complainant as revealed from the averments contained in the complaint is also to the effect that, the accused had borrowed an amount of Rs.3,65,000/-. The specific case of the complainant is that, out of Rs.3,65,000/-, the accused in this case issued Ext.P1 cheque for Rs.1,65,000/- to the complainant. 13. It is relevant to note that, the case of the complainant regarding the chitty transaction and the liability connected thereto are raised or such a case was put up only after remand of the matter by this court. Neither in the complaint nor in the notice sent by the complainant, she has a case regarding chitty transaction and the liability connected therein. The learned counsel for the respondent/complainant submitted that the findings of the learned Sessions Judge in his common judgment regarding the chitty transaction and the liability thereof is 12 Crl. R.P.No.1183 of 2009 absolutely correct because in the local chitty transactions there may not be any documents as that of a chitty conducted by a registered financial institution. The above submission could have been considered, if such a plea raised in the complaint or in the notice. The complainant has mentioned about the chitty transaction for the first time, when she was cross examined during the first trial. The further details regarding the chitty transaction deposed only after the remand of the matter. Till that time regarding the chitty transaction, there was no averments at all and no evidence was adduced. 14. But in the present case, the specific defence taken by the accused is to the effect that when he had obtained a loan of Rs.65,000/- from the complainant during the year 1994, he had issued two blank cheques and signed blank papers. Regarding the issuance of signed blank cheques, he had already mentioned the details in his reply notice, though there was omission about the issuance of the signed blank papers. But the specific case of the complainant is that Ext.P1 cheque was issued on 15.5.2000. 13 Crl. R.P.No.1183 of 2009 PW1 had admitted that Ext.P8 pro-note dated 10.1.2000, executed by the accused was with her. Naturally a doubt would arise, if Ext.P8 pro-note dated 10.1.2000 executed by the accused was with the revision petitioner, what was the necessity for issuing Ext.P1 cheque dated 15.5.2000. The above doubtful situation is more complicated as per Ext.D1 complaint, which allegedly lodged by the complainant before Njarackal Police. Ext.D1 dated 27.1.2000 was proved through Dws.1 and 2. DW1 is the Constable, DW2 is the Writer attached to Njarackal Police Station. In Ext.D1 complaint, which is dated 27.1.2000 it is stated that, one man viz., Kuttan borrowed a sum of Rs.65,000/- from her and another sum of Rs.3 lakhs is due to her from the said Kuttan and towards the security of the said liability, he had entrusted with her copy of the patta and two cheques pertained to Federal Bank, Njarackal Branch. In the report filed along with Ext.D1, it is stated that the complainant as well as the accused in C.C.No.448/00 were summoned to the police station on the basis of the petition dated 27.1.2000 and on appearance of both the 14 Crl. R.P.No.1183 of 2009 parties, both of them agreed that the accused to pay Rs.500/- per month to the complainant and further if the complainant has got any grievance, she is free to take it to the Civil Court. On the reverse side of Ext.D1, above terms of settlement is endorsed, signed by both the revision petitioner as well as the respondent in the petition. 15. The learned counsel for the respondent submitted that Ext.D1 is a false document created by the police at the instance of the revision petitioner/accused. The learned counsel pointed out that the petition dated 27.1.2000 is not endorsed in the petition register mentioned in the Office of the Circle Inspector, Njarackal Police Station and therefore the same can not be believed. According to me, there is no basis for the said submission, because PW1 herself had admitted that she had preferred a complaint before the police. Though the accused took summons and got produced Ext.D1, to prove the same he had examined Dws.1 and 2 but the complainant did not take any step to get summon the document or the petition which alleged 15 Crl. R.P.No.1183 of 2009 to have filed by her before the police, other than Ext.D1. 16. It is also relevant to note that regarding Ext.P8 pro-note dated 10.1.2000, the complainant had admitted the same only after remand. I have gone through Ext.P8. Ext.P8 is a stamp paper, that contain the signature of the accused. It is also pertinent to note that there is a vide space between the last line of writing in Ext.P8 and the signature and the stamp affixed on Ext.P8. It is also relevant to note that the specific case of the accused was that, when he obtained Rs.65,000/- during the year 1994 from the complainant, he had issued two blank cheques and signed papers. Regarding Ext.P8, the complainant admitted the same only after the remand of the matter and the explanation given by her for not producing Ext.P8 during the initial trial is appears to be only a lame excuse. A conjoined reading and appreciation of Ext.P8 and Ext.D1 in the background of the specific plea taken by the accused, it can be seen that the accused had established a probable case. As correctly observed by the learned Magistrate and after assigning cogent and 16 Crl. R.P.No.1183 of 2009 acceptable reasons, the learned Magistrate came into a conclusion that, Ext.P1 cheque is not executed by the accused in favour of the complainant with an intention to bind himself liable for Rs.1,65,000/-. 17. After the above findings, the trial court further concluded that as the accused has already admitted the borrowal of Rs.65,000/- from the complainant and in the absence of any evidence regarding the repayment of the same, Ext.P1 cheque can be treated to the extent of consideration of Rs.65,000/- and the accused is to be held liable under Ext.P1 cheque for the offence punishable u/s.138 of Negotiable Instruments Act to that extent. 18. But though the accused/revision petitioner challenged the above findings and the liability, by filing an appeal, the appellate court upon the revision petition filed by the complainant, which preferred challenging the sentence on the ground of inadequacy, re-appreciated the evidence, ignoring the grounds taken in the revision petition by the complainant. It is 17 Crl. R.P.No.1183 of 2009 also relevant to note that when the trial court assigned the reasons for confining the liability to Rs.65,000/-, especially on the basis of the admission made by the accused, the learned Sessions Judge in the absence of any cogent and satisfactory evidence regarding the chitty transaction and even in the absence of any averments either in the complaint or in the demand notice, particularly when the plea regarding the transaction with respect to the chitty was taken after the remand of the matter, came into a conclusion that the plea of the complainant that a sum of Rs.1,65,000/- is due to the complainant, is correct. In order to come into such a conclusion as I indicated earlier, there is no evidence or materials. But only on the basis of surmise conjecture that, in local areas several chitties are conducted for which there is no documents etc., the appellate court came into a conclusion that the transaction alleged by the complainant is correct, I am unable to endorse the observation and findings especially in the absence of any legal evidence. 18 Crl. R.P.No.1183 of 2009 19. In the light of the above discussions and the evidence and materials referred above, I am of the view that the findings of the trial court, fixing the liability of the accused to Rs.65,000/- which he admitted and especially when there is no evidence to show that the said liability is cleared off, the findings of the trial court requires to be approved and in the absence of any evidence on record, the findings of the lower appellate court that a sum of Rs.1,65,000/- is due to the complainant, is liable to be set aside. In the result, this revision petition is disposed of setting aside the judgment of the lower appellate court and approving the judgment of the trial court and confirming the conviction recorded by the trial court. The learned counsel for the revision petitioner submitted that after the first trial, the revision petitioner was in custody for two weeks and now he is arrested on 24.7.2010 and he is still in custody. In this juncture, I am of the view that, the sentence of imprisonment ordered by the courts below can be modified and 19 Crl. R.P.No.1183 of 2009 reduced, considering the period of imprisonment he had undergone. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment for a period of 2 months and he is entitled to get set off u/s.428 of Cr.P.C. The cheque in question is dated 15.5.2000 that too for an amount of Rs.65,000/-. As per the findings of the courts below, which approved by this court, the said amount is due to the complainant for the last 10 years. Therefore, according to me it is only just and proper to direct the revision petitioner to pay a sum of Rs.85,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in case of any failure on the part of the revision petitioner in paying the above amount within the stipulated time, he is directed to undergo simple imprisonment for a period of 3 months. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. 20 Crl. R.P.No.1183 of 2009 In the light of the modification with respect to the sentence of imprisonment which reduced to 2 months, the revision petitioner is entitled to get released forthwith, since he is undergoing imprisonment right from 24.7.2010, if he is not required in any other case. Therefore, the Registry is directed to forward gist of this order to the Jail authorities concerned for appropriate action, including the release of the revision petitioner. After the release of the revision petitioner from jail, he is directed to appear before the trial court on 27.12.2010 to pay the compensation amount as fixed by this court. V.K.MOHANAN, Judge. ami/