IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 Crl.Rev.Pet.No. 1577 of 2007(B) ------------------------------ CRA.217/2005 of SESSIONS COURT, KALPETTA STC.807/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KALPETTA. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.JAYADEVAN, S/O.GOVINDA MARAR, AGED 40 YEARS, AJAY BHAVAN, KOKKUZHI, MANIYANGODE P.O., KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENTS/RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. KALPETTA KSHEEROLPADAKA SAHAKARANA SANGHAM, MANIYANGODE P.O., KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT, REPRESENTED BY ITS SECRETARY, K.P.SAUDAMINI. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA FOR R2 ADV.SRI.JACOB SEBASTIAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO. 1577 OF 2007 -------------------------------------------------- Dated this the 9th day of January, 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T.807 of 2005 on the file of Judicial First Class Magistrate, Kalpetta. Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Conviction was confirmed and sentence was modified to imprisonment for one day and a compensation of Rs.51,522/- by Sessions Judge, Kalpetta in Crl. Appeal 217 of 2005. Revision is filed challenging the conviction and the sentence. 2. Learned counsel appearing for revision petitioner argued that even though in the complaint and at the time of evidence, Secretary of the first respondent Society as PW1 deposed that revision petitioner was terminated from the service of the first respondent Society as a collection agent on 6.10.2003 and Ext.D1, communication issued by the Secretary of the Society dated 6.9.2003 establish that revision petitioner was terminated from his employment as collection agent with effect from 6.9.2003 and not 6.10.2003 and therefore the case that on 6.10.2003 when the service of revision CRRP 1577/2007 2 petitioner was terminated the liability was fixed at Rs.51,522/- cannot be accepted. Learned counsel also argued that as per the complaint Ext.P1 cheque was issued on 6.10.2003 as a postdated cheque dated 16.4.2004 for that amount and if in fact such a cheque was issued, on 6.10.2003 when Ext.D2 later was issued by the first respondent Society, issuance of the cheque would have been mentioned therein and instead what is stated therein is that for realisation of that amount, proceedings will be initiated both civil and criminal and therefore on 26.2.2004 Ext.P1 cheque was not in existence. Learned counsel also argued that even if the case of the first respondent that Rs.51,522/- was due on 6.9.2003 is accepted, when by Ext.D3 it is proved that Rs.5,000/- was deposited by revision petitioner as security on 13.10.2001 and if after fixing the liability a cheque was issued, amount could only be less the amount covered by Ext.D3 and cannot be Rs.51,522/- and therefore it is clear that Ext.P1 cheque was not issued for discharge of a liability or debt as the liability could only be five thousand less than Rs.51,522/-, even if the case of the first respondent is accepted. Learned counsel also argued that when revision petitioner has a specific case that the amount is not due and first respondent admitted that there are records to prove the actual amount due, including daily collection Register and when no such material was produced it cannot be said that Rs.51,522/- was due and CRRP 1577/2007 3 if so, the conviction is not sustainable. 3. Learned Magistrate and the learned Sessions Judge accepted the evidence of PW1 and disbelieved the defence case that Ext.P1 cheque was not issued towards discharge of an existing liability but was issued as a security, disbelieving the evidence of the revision petitioner as DW1. As rightly argued by the learned counsel appearing for the revision petitioner, the initial onus is on the first respondent to prove that Ext.P1 cheque was issued towards the discharge of an existing debt or liability. When revision petitioner has a case that Ext.P1 cheque was issued as security, at the time when revision petitioner was appointed as the collection agent of the first respondent Society, the onus cannot be shifted to the revision petitioner based on the presumption available under section 139 of the Negotiable Instruments Act. Even if it is to be taken that it is for the revision petitioner to rebut the presumption available under section 139 of Negotiable Instruments Act, evidence on record establishes that there could not have been a liability of Rs.51,522/- as on 6.9.2003 or 6.10.2003 as claimed by the first respondent. 4. Ext.D2 is a letter admittedly issued by PW1 as Secretary of the first respondent Society on 26.2.2004. As per Ext.D2 letter, revision petitioner got satisfied that as on 6.9.2003 he is liable to pay Rs.51,522/- and revision petitioner had requested time to deposit that CRRP 1577/2007 4 amount, which was granted by the Society and still revision petitioner failed to deposit the amount. Therefore, under Ext.D2 letter dated 26.2.2004, revision petitioner was warned that if he failed to deposit that amount, proceedings will be initiated both civil and criminal against the revision petitioner. As rightly argued by the learned counsel appearing for revision petitioner, if on 26.2.2004 Ext.P1 cheque was in existence, that fact would have been disclosed in Ext.D2 and it would have been mentioned that towards discharge of Rs.51,522/- a postdated cheque was issued by the revision petitioner. The conspicuous absence of existence of the cheque issued by the revision petitioner prior to 26.2.2004, though as a postdated cheque, probablise the case of the revision petitioner that Ext.P1 cheque was created later making use of a cheque, which was entrusted by revision petitioner as security. 5. In spite of Ext.D1 intimation issued by the Society that service of the revision petitioner was terminated as on 6.9.2003, what was pleaded in the complaint as well as deposed by PW1 was that his service was terminated only on 6.10.2003. Evidently it is in support of the allegation of the complaint that Ext.P1 cheque was issued on 6.10.2003, when the service was terminated fixing the liability as on that date. But Ext.D2 communication falsifies the said case. Under Ext.D2 the liability was not as on 6.10.2003 but on 6.9.2003. It is CRRP 1577/2007 5 admitted by PW1 that at the time of appointment of PW1 Rs.5,000/-, as evidenced by Ext.D3, was received from the revision petitioner as security. If that be so, on the date when service of the revision petitioner was terminated on 6.9.2003 and the total liability outstanding was Rs.51,522/-, the Society is liable to deduct Rs.5,000/- received earlier under Ext.D3 as security and revision petitioner is only liable to pay the balance and if so a cheque was issued in discharge of the liability, it cannot be for Rs.51,522/- but Rs.5,000/- less than that amount. That also establishes that Ext.P1 cheque could not have been issued towards discharge of the liability as on 6.10.2003 as claimed by PW1 or alleged in the complaint. If in fact the liability was fixed and the cheque was issued on 6.10.2003, it is not known why a postdated cheque dated 16.4.2004 is to be issued by the revision petitioner. Added to this, when the evidence establish that the amount legally payable by the revision petitioner cannot be the amount covered by Ext.P1 cheque, it cannot be said that Ext.P1 cheque was issued towards discharge of an existing debt or liability so as to attract the offence under section 138 of Negotiable Instruments Act. This is not the case where the exact liability of revision petitioner as on date of issuance of the cheque cannot be established. The evidence of PW1 establishes that there are records in the Society to prove what exactly was the amount liable to be paid by the revision CRRP 1577/2007 6 petitioner. But no evidence was adduced to prove that Rs.51,522/- was due from the revision petitioner. Unfortunately the Courts below omitted to take note of these material facts, which consequently erred the Courts below in convicting the revision petitioner. When evidence establish that as on the date of the alleged issuance of the cheque, Rs.51,522/- as seen therein was not due, revision petitioner cannot be convicted for the offence under section 138 of Negotiable Instruments Act. Conviction is therefore set aside. Revision is allowed. Conviction of the revision petitioner in S.T.807 of 2005 on the file of Judicial First Class Magistrate, Kalpetta as confirmed by Sessions Judge, Kalpetta in Crl. Appeal 217 of 2005, is set aside. Revision petitioner is found not guilty of the offence. He is acquitted. The bail bond executed by him stands cancelled. If the revision petitioner has deposited any amount for the purpose of getting stay of execution of the sentence, he is entitled to withdraw the same. M. SASIDHARAN NAMBIAR, JUDGE okb