IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 Crl.Rev.Pet.No. 638 of 2000() ----------------------------- CRA.309/1998 of SESSIONS COURT, THRISSUR CC.375/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- M.K.GOVINDAN, MARATH HOUSE, KODANNUR VILLAGE, KODANNUR DESOM, THRISSUR. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S)/COMPLAINANT --------------- 1. T.A.LIBI, S/O ANTONY, THATTIL CHEENIKKAL HOUSE, LALOOR DESOM, ARANATTUKARA VILLAGE, THRISSUR 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. ADV. SMT.C.NANDINI MENON FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.638/2000 -------------------- Dated this the 18th day of February, 2009 ORDER The accused in C.C.No.375/97 on the files of the Judicial Magistrate of First Class-I, Thrissur, is the petitioner in this Revision petition. He was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act and found guilty thereunder. He was directed to pay a fine of Rs.3,60,000/- with a further direction that if the fine is realized, an amount of Rs.3,50,000/- shall be paid over to the complainant as compensation, under Section 357 of the Cr.P.C. The conviction and sentence have been affirmed by the lower appellate Court and hence this Revision. 2. The case of the complainant is that the complainant and his father Antony, who was examined as DW1, started a tyre retreading business at Kokkalai under the name and style of “Prima Tyres” and partnership agreement was executed. Business was being conducted jointly till 7.3.1993. There arose a Crl.R.P.638/2000 2 difference of opinion between the father and son. The complainant/son therefore, left for Saudi Arabia on 7.3.1993 and came back in December, 1993. Specific contention was that the licence for the business as also the rent deed in respect of the premises, was in the name of the complainant. It was alleged that the partnership concerned had an asset valued at Rs.15 Lakhs, that the complainant's father, Antony, had sold the business concerned to the accused for an amount of Rs.12 Lakhs. The complainant came back and he filed a case against his father as also the accused. Due to intervention of the mediators, the accused had agreed to pay an amount of Rs.3,50,000/- as consideration to the complainant. A cheque was therefore, issued in this regard. The cheque, on presentation, was dishonoured and hence the complaint was filed alleging that the accused had committed an offence under Section 138 of the Act. 3. The complainant had examined himself as PW1. PW2 the Bank Manager was examined. The accused examined the father of the complainant as DW1. The Crl.R.P.638/2000 3 defence taken up by the accused was that the business was originally run by the complainant's father and it was not a partnership as such. Complainant's father wanted to stop the business and the accused wanted to take over the business. There was a transaction between the two. Transaction was for an amount of Rs.15,000/- and as a security for the said transaction, a blank signed cheque was handed over by the accused to the complainant's father, DW1. That this was later taken away by the complainant and misused for the purpose of launching a prosecution under Section 138 of the Act. 4. The specific defence taken by the accused as evidenced by the testimony of DW1, and with reference to Exts.D1 and 2, was that the accused and the complainant had no transaction with each other. The possession of the cheque with the complainant was explained in the manner aforementioned and the case of the accused was supported by DW1. No doubt, the father and the son were not in good terms. But the possibility of the father deliberately stating falsehood before the Court, against the accused cannot be lightly Crl.R.P.638/2000 4 assumed. There is no reason why the testimony of DW1 should not have been accepted. That could have been treated as discharge of the burden by the accused. Reference is made in this regard to the law laid down by the Supreme Court in Narayana Menon v. State of Kerala (2006 (3) KLT 404 [SC] ) and Krishna Janardhan Bhat v. Dattatraya Hegde (2008 (1) KLT 425 [SC] ). The custody of the cheque with the complainant was not only sought to be explained by the accused but also explained as such and the best evidence possible in this regard is the testimony of the father of the complainant who was examined as DW1. The testimony of DW1 does seem to be believable. 5. I also think it is significant to refer to Exts.D1 and D2. Exts.D1 and D2 are the rent deeds executed by DW1 in the name of the concern. This disproves the contention of the complainant that the premises were taken on lease by him, suggesting as it were the explanation as to why the accused should have agreed to pay a sum of Rs.3,50,000/- to the complainant. Exts.D1 and D2 support the case of the accused and is Crl.R.P.638/2000 5 consistent with the testimony of DW1 in as much as the case of DW1 was that the building had been taken on lease by him and therefore, he was competent to surrender possession of the same and that the accused was in a position to start the business of his own in the said premises. In other words, Exts.D1 and D2 disprove the case of the complainant that the transfer of business could not have been effected except with the consent of the complainant. 6. The complainant also had a case that the licence for the business was issued in his name. In fact, when he filed the complaint in 1997, he is shown to be aged 26 and according to him, he entered into a partnership agreement with his father in the year 1988. It is difficult to believe the case of the complainant in this regard because he would have been only 18 when the partnership was alleged to have been entered into and he was only a student at that time. At any rate, DW1 has spoken otherwise and the fact that the building was taken on lease is proved by Exts.D1 and D2. Crl.R.P.638/2000 6 7. Having gone through the judgments of the Courts below and having heard learned counsel for the petitioner, I am of the view that the law as regards the onus of proof that is cast on the accused and the extent to which the complainant is entitled to take the benefit of a presumption under Section 138 of the Act, has not been correctly applied by the Courts below. At any rate, the application of law made in this regard is inconsistent with the law as now espoused by the Supreme Court in the aforementioned decisions in Narayana Menon as also in Dattatraya Hegde. 8. I have noted the absence of the learned counsel for the complainant, at the time of hearing. On my request, learned Public Prosecutor had enquired and reported that the counsel who was appearing for the complainant earlier is now ill and not in a position to attend the Court and I therefore, ordered fresh notice to be taken out to the complainant by Special Messenger. Such notice has been served as well. There is still no appearance on behalf of the complainant. Crl.R.P.638/2000 7 9. For all these reasons mentioned above, I am of the view that the conviction of the accused under Section 138 of the Negotiable Instruments Act is unsustainable. 10. Accordingly, the Criminal Revision Petition is allowed. The conviction and sentence of the accused in C.C.No.375/97 on the files of the Judicial Magistrate of First Class-I, Thrissur, is set aside. The bail bond executed by the accused shall stand cancelled. If he has deposited any amount by way of fine, same shall be re- funded to him. V.GIRI, Judge mrcs