IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 Crl.Rev.Pet.No. 45 of 2005(A) ----------------------------- CRA.544/2003 of VI ADDL.SESSIONS COURT, ERNAKULAM .................... REVISION PETITIONER: --------------------- T.P. ABDUL JABBAR, KULANGARAPADAM, FEROOK COLLEGE P.O., KOZHIKODE-673 632. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.N.P.SETHU SRI.R.PADMARAJ RESPONDENTS: --------------- 1. SEBASTIAN FERNANDEZ, S/O. XAVIER FERNANDEZ, RESIDING AT HOUSE NO.23/2417, JOSE DALE, PALLURUTHY, KOCHI-682 006. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JACOB THOMAS FOR R1 PUBLIC PROSECUTOR, SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2011, ALONG WITH CRRP NO. 892 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------- Crl.R.P.Nos. 45 & 892 OF 2005 --------------------------- Dated this the 22nd day of July, 2011 C O M M O N O R D E R ~~~~~~~ The revision petitioner in Crl.R.P.45/2005 is the accused in C.C.No.396/2000 on the file of the Judicial Magistrate of the First Class-II, Kochi. The petitioner in the other revision petition is the complainant. Hereinafter the parties are referred to as the 'complainant' and 'accused'. The complainant prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act with a plea that the accused borrowed a sum of Rs.4,75,000/- and in turn issued Ext.P1 cheque dated 20.11.1999 drawn on State Bank of Travancore, Kallayi Branch and that when presented for collection through Union Bank of India, Kallayi Branch it was returned dishonoured for insufficient funds and despite the notice demanding discharge, the liability was not discharged. Since the accused pleaded not guilty he was sent for trial. On the side of the complainant, he was examined as PW1 and Exts.P1 to P7 were marked. The accused took a defence that he along with the complainant and four others were running a Crl.R.P.Nos.45 & 892/2005 2 business and on dissolution of the firm Rs.1,00,000/- was due to the complainant and as a security the complainant obtained five cheques, of which Ext.P1 is one among them and that the liability was later discharged through one Leslie Monto but the cheque was not returned. In support of the defence version, the accused himself entered the witness box and was examined as DW1. The Manager of the State Bank of Travancore, Kallayi Branch was examined as DW2. Exts.D1 to D9 were marked. On appraisal of the evidence, the learned Magistrate arrived at a conclusion of guilt. Consequently, the accused was convicted and sentenced to simple imprisonment for three months with direction to pay Rs.4,75,000/-, the cheque amount, as compensation to the complainant. Aggrieved by the above conviction and sentence, accused went in appeal. By judgment dated 2.9.2004 in Crl.A.No.544/2003 the VI Additional Sessions Judge, Ernakulam confirmed the conviction and substantive sentence. The compensation was reduced to Rs.3,00,000/-. Assailing the above conviction and sentence as modified in appeal, the accused had come up in revision. Assailing the judgment of the appellate court so far as it reduced the Crl.R.P.Nos.45 & 892/2005 3 compensation amount, the complainant has come up in revision. 2. I have heard Sri.Jacob Thomas, the learned counsel appearing for the complainant and Sri.R.Padmaraj, the learned counsel appearing for the accused and gone through the judgments impugned as well as the evidence on record. 3. The complainant as PW1 had given evidence in support of the averments in the complaint. According to him, the accused borrowed Rs.4,75,000/- and in discharge of the liability Ext.P1 cheque was issued. In cross examination, it was revealed that the partnership firm constituted by the complainant and the accused along with four others as per Ext.D1 partnership deed was dissolved as per Ext.D2 dissolution deed dated 27.4.1998. In Ext.D2 there is mention that Rs.1,00,000/- had to be paid to the complainant by the accused. Ext.D3 agreement dated 14.5.1998 would show that on that date Rs.50,000/- was paid, out of the amount due as per Ext.D2 and the balance amount was agreed to be paid on or before 30.7.1998. The very case of the accused is that the complainant obtained Ext.P1 and four other Crl.R.P.Nos.45 & 892/2005 4 cheques as security for the repayment of the amount mentioned in Ext.D2. In cross examination, PW1 had deposed that out of the amount due as per Ext.D2, half was paid on the date of execution and the balance amount was later paid. That evidence is contradicted by Ext.D3 which would show that Rs.50,000/- was paid only on 14.5.1998 and the balance was offered to be paid on 30.7.1998. That means PW1 was not telling truth. In cross examination of PW1 it was also deposed that the accused borrowed the amount on 19.10.1999. Curiously, the complainant has not mentioned that aspect in the complaint. A plain reading of the complaint would show that the borrowal was on 20.11.1999 on which date the cheque was given. Regarding the money alleged to have been paid by the complainant, when cross examined, at first, PW1 had deposed that his father-in-law disposed some landed properties two months back and the money advanced was given to him by the father-in-law. Later, in cross examination, he turned round and stated that father-in-law paid only Rs.2,75,000/- and the balance amount of Rs.2,00,000/- was his own. It is curious to note that he had to admit that he had not deposited the amount in any bank. To put it short, Crl.R.P.Nos.45 & 892/2005 5 regarding the amount paid complainant has no evidence other than his testimony in the box. It is very doubtful about the capacity of the complainant to pay the amount covered by Ext.P1. Regarding the drawal of the cheque, in cross examination it was stated by the complainant that the cheque was drawn by the clerk of the accused in his handwriting. A look at Ext.P1 would show that the contents in Ext.P1 was type written. Adding to these contradictions, the evidence of DW2 would show that the accused had issued stop memo on 1.3.1999 relating to the cheque in dispute and three other cheques alleged to have been given to the complainant as security. That evidence is corroborated by Ext.D8. I find no reason to disbelieve that evidence. The accused as DW1 also had given evidence to that effect. The above evidence of DWs 1 and 2 regarding the issuance of stop memo, there is no challenge in cross examination. The stop memo is dated 1.3.1999. The cheque in dispute is dated 20.11.1999. It would clearly establish that Ext.P1 was issued at least before 1.3.1999. The stop memo issued by the accused probablises the defence. It is also pertinent to note that though as per Ext.D3 Rs.50,000/- was to be Crl.R.P.Nos.45 & 892/2005 6 paid by the accused on 30.7.1998, there is no evidence on record that such payment was made at any time. In the above background, the conclusion that could be arrived is that Rs.50,000/- was due from the accused to the complainant as per Exts.D2 and D3. While that liability was outstanding, it is too difficult to believe that the complainant had lent a sum of Rs.4,75,000/- to the accused. I had earlier mentioned that even the capacity of the complainant to pay that much amount itself is doubtful. Ext.D3 would show that parties are in the habit of creating document even for discharge of Rs.50,000/- covered by Ext.D2. In such circumstance, it is too difficult to believe that the complainant had parted a sum of Rs.4,75,000/- without any document. In this view of the matter, I find that the accused had succeeded to establish the defence a probable one. What is discussed earlier would show that the transaction alleged by the complainant is shady and improbable. He has little courtesy to truth. The courts below while analysing the evidence of PW1 omitted these aspects. On a critical appraisal of the evidence of PW1, I find that the evidence of PW1 is not believable to sustain a conviction for offence under Section 138 of the Negotiable Crl.R.P.Nos.45 & 892/2005 7 Instruments Act. His evidence didn't instil confidence. He failed to establish the consideration for drawing Ext.P1 or that Ext.P1 was issued in discharge of any liability. Therefore, the conviction and sentence under challenge are not sustainable. The accused is entitled to an order of acquittal. In the result, Crl.R.P.No.45/2005 is allowed. While setting aside the conviction and sentence under challenge, the accused would stand acquitted. The bail bond, if any, executed by him shall remain discharged. If any amount is deposited before the trial court, that shall be refunded to the accused. Crl.R.P.No.892/2005 would stand dismissed. This order would form part of Crl.R.P.No.45/2005 and copy would form part of other Revision Petition. (P.S.GOPINATHAN, JUDGE) ps/23/7