High Court Kerala High Court

P.J.Joy vs State Of Kerala on 28 June, 2010

Kerala High Court
P.J.Joy vs State Of Kerala on 28 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1215 of 2003()


1. P.J.JOY, OUR ENTERPRISES,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. LEELAMMA ABRAHAM,

                For Petitioner  :SRI.BABU JOSEPH KURUVATHAZHA

                For Respondent  :SRI.R.ANIL

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :28/06/2010

 O R D E R
             M.Sasidharan Nambiar, J.
             -------------------------
              Crl.R.P.No.1215 of 2003
             -------------------------
       Dated this the 28th day of June, 2010

                       ORDER

Petitioner, the accused in S.T.No.263/1991, was

convicted and sentenced for the offence under

Section 138 of Negotiable Instruments Act by Chief

Judicial Magistrate, Kottayam. Petitioner

challenged the conviction and sentence before

Sessions Court, Kottaym in Crl.A.No.172/2000.

Learned Additional Sessions Judge, on re-

appreciation of evidence, confirmed the conviction,

but modified the sentence to simple imprisonment

for two months, confirming the fine which was

directed to be paid as compensation. This revision

is filed challenging the conviction and sentence.

2. Learned counsel appearing for the petitioner

was not present. Learned counsel appearing for the

second respondent was heard and perused the

records.

3. Second respondent/complainant lodged a

complaint before Chief Judicial Magistrate’s Court,

Kottayam alleging that petitioner issued Exhibit P1

Crl.R.P.No.1215 of 2003 2

cheque drawn in Kottayam Branch of Catholic Syrian

Bank for Rs.1,30,000/- and when the cheque was

presented for encashment, under Exhibit P2, it was

dishonoured and Exhibit P3 intimation was received

and Exhibit P4 notice was issued by the second

respondent demanding the amount covered by Exhibit

P1 cheque and it was received by the petitioner

under Exhibit P6 acknowledgement, but he failed to

pay the amount and thereby committed the offence

under Section 138 of Negotiable Instruments Act.

Petitioner pleaded not guilty.

4. Learned Chief Judicial Magistrate, on the

evidence of second respondent as PW1 and the

Manager of the Bank as PW2 and Exhibits P1 to P7,

convicted the petitioner, finding that evidence of

PW1 establishes that Exhibit P1 cheque was issued

towards discharge of an existing liability. The

case of the petitioner that transaction was with

the husband of the second respondent and in that

transaction, three cheques were issued and no sales

Crl.R.P.No.1215 of 2003 3

tax clearance was obtained and no intimation was

received and therefore, petitioner is not liable to

pay the amount covered by the cheque was not

accepted by the learned Chief Judicial Magistrate.

In appeal, learned Additional Sessions Judge

confirmed that finding.

5. The records of the learned Chief Judicial

Magistrate show that petitioner was questioned

under Section 313 of the Code of Criminal Procedure

on 22.2.2000 after closing the evidence of the

second respondent on 14.2.2000. The case was then

posted for filing witness list by the accused.

Records show that a witness list was filed and an

application was filed seeking summons to one

witness, to produce documents. The proceedings

paper also shows that though the witness was

present on 5.4.2000, as documents were not

available he was not examined. On 11.4.2000 the

evidence was closed and posted for arguments.

Petitioner thereafter filed an application to

Crl.R.P.No.1215 of 2003 4

reopen the case pointing out that he has to examine

the witness. It was allowed and summons was issued

to the witness to produce documents. Case was

posted to 26.5.2000. On 26.5.2000 the learned

Magistrate recorded that “witness present. She has

reported that documents are not available. She is

discharged. Evidence is closed. Hearing to

8.6.2000”. The proceedings show that a petition

was thereafter filed by the petitioner for

permitting to examine herself. It was dismissed.

It is thus clear that the Chief Judicial Magistrate

disposed the case without providing adequate

opportunity to the petitioner to adduce evidence.

6. Though it is not alleged in the complaint,

as PW1 second respondent deposed that Exhibit P1

cheque was issued towards the payment for the

timber supplied to the petitioner. When she was

questioned further she admitted that there are

records to establish the transaction and she is

willing to produce those records. As second

Crl.R.P.No.1215 of 2003 5

respondent did not produce the documents,

petitioner filed an application directing her to

produce the documents. It is seen that an

affidavit was filed by the second respondent that

those records are not available. In the light of

the contentions raised by the parties, for the sole

reason that a cheque was issued which according to

the petitioner was not issued towards discharge of

an existing liability or debt, an offence under

Section 138 of the Negotiable Instruments Act will

not be attracted. When the petitioner has a case

that he has no transaction with the second

respondent and to establish his case a witness list

was filed including examination of the husband of

the second respondent, learned Magistrate was not

justified in closing the evidence, when examination

of the witnesses was not given up. In such

circumstances, interest of justice warrants that

the case is to be remanded to Chief Judicial

Magistrate for fresh disposal after granting

Crl.R.P.No.1215 of 2003 6

opportunity to the accused to examine the witnesses

sought for in the witness list. On such evidence

being adduced it is for the Chief Judicial

Magistrate to decide whether there was a

transaction between the complainant/accused and

whether Exhibit P1 cheque was issued towards

discharge of any such debt or liability.

7. Revision is allowed. Conviction of the

petitioner for the offence under Section 138 of the

Negotiable Instruments Act as confirmed in

Crl.A.No.172/2000 is set aside. S.T.263/1991 is

remanded to Chief Judicial Magistrate for fresh

disposal in accordance with law, after granting

opportunity to the petitioner/accused to examine

the witnesses shown in the witness list. It is

made clear that it is for the petitioner to make

available the witnesses and to take steps to issue

summons if their presence could be procured only on

such summons. The party shall appear before the

Chief Judicial Magistrate Court on 6.8.2010 and

Crl.R.P.No.1215 of 2003 7

petitioner will take steps immediately on

appearance and shall not protract the case. Chief

Judicial Magistrate to dispose the case

expeditiously. Sent back records to the Chief

Judicial Magistrate immediately.

M.Sasidharan Nambiar,Judge

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