IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 528 of 2000()
1. MOIDEENKOYA
... Petitioner
Vs
1. T.RAJAN
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.GIRI
Dated :06/03/2009
O R D E R
V.GIRI, J
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Crl.R.P.528/2000
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Dated this the 6th day of March, 2009
ORDER
Accused in C.C.236/90 on the files of the Chief
Judicial Magistrate Court, Kozhikode, is the petitioner
in this Criminal Revision Petition. He was
prosecuted, convicted and sentenced for the offence
punishable under Section 138 of the Negotiable
Instruments Act.
2. The case of the prosecution was that the
complainant was running a stationary shop at Jail
Road, Calicut and his friend Ramadas was running
another stationary shop. The office of S.K.S
Travels is on the opposite side of the said shops.
S.K.S Travels operates bus service from Kozhikode
to Bangalore. On 22.10.1989, bus No.CAK 5200
belonging to S.K.S.Travels hit the aforementioned
shops and the complainant and the neighbouring
shop owner suffered considerable damage on
account of loss of articles. Ext.P1 agreement was
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therefore, drawn up in which the Manager of S.K.S
Travels had agreed to compensate the complainant
and Mr.Ramadas for damage that had been caused
to them. The damage was not then assessed.
Therefore, the figure was not mentioned. But
contrary to the undertaking so given, complainant
and Mr.Ramadas were not compensated. On
23.12.1989, the complainant and his friend
Ramadas blocked the running of the bus belonging
to S.K.S Travels. Therefore, there was delay in the
commencing of the service. Passengers were
waiting for the bus. One of them was the daughter-
in-law of PW2, who was then the senior executive
president of Gwaliyor Rayons, Mavoor. He had
intervened and persuaded the parties to settle the
dispute. Claim was agreed to be settled for an
amount of Rs.40,000/- to be paid to the complainant
and his friend Ramadas. Rs.5,000/- was paid in
cash and Ext.P2 cheque was issued for the
balance amount. The accused said that he owed
money to S.K.S travels and therefore, he issued
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Ext.P2 cheque. Entries in Ext.P2 cheque was
actually written by PW2, Mr.Sabu. Cheque on
presentation was dishonoured and later the
complaint was lodged, after complying with the
statutory formalities. The defence taken by the
accused was that he did not owe any money, nor
does the complainant have any such case. Cheque
in question was issued only as a measure of
security, to enable S.K.S Travels to pay the
amount due to the complainant and Mr.Ramadas.
3. The Courts below declined to accept the case
of the accused and proceeded to convict and
sentence him for the offence punishable under
Section 138 of the Negotiable Instruments Act.
Hence this Revision.
4. I heard Mr.V.V.Surendran, learned counsel for
the petitioner. In spite of notice, there is no
appearance on behalf of the first respondent. I
have gone through the evidence adduced. Even the
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4
complainant does not have a case that the
accused had owed any money to the complainant or
his friend Ramadas. The cheque in question was
issued as a self drawer cheque. If the version of
the accused is accepted, then it will mean that the
accused had issued the cheque, as a measure of
guarantying payment of the amount to S.K.S
Travels. No doubt, issuance of a cheque by a third
party, for discharge of liability incurred by
another person, would also be supported by
adequate consideration, in the sense that the
liability of S.K.S Travels would also be a
consideration for a cheque issued by the accused.
But, I find force in the contention raised by the
learned counsel for the petitioner that the actual
amount that had to be paid as compensation to the
complainant and Mr.Ramadas was not assessed
on the date of issuance of the cheque. Only an
approximate figure was mentioned even by PW1.
Therefore, issuance of cheque on 23.12.2008 may
not have been treated as one for discharge of a
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liability which had then been incurred by the
accused vis-a-vis the complainant. In my view,
these aspects have not been correctly appreciated
by the Courts below. Therefore, the matter
requires a re-consideration by the Court below. I
take note of the contention of the learned counsel
for the petitioner that neither the complainant nor
Mr.Ramadas are currently available and they are
not really interested in prosecuting the matter.
5. For all these reasons, Criminal Revision
Petition is allowed. Orders passed by the Courts
below are set aside and the case is remitted back to
the trial Court for fresh consideration. If an
application is made by the complainant for adducing
any fresh evidence, that shall be considered in
accordance with law by the Court below. So also
any motion made by the accused for additional
evidence shall also be dealt with by the Court
below in accordance with law.
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Parties shall appear before the Court below on
6.4.2009. Registry shall transmit the LCR back to
the Court below.
V.GIRI,
Judge
mrcs