IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1620 of 2003(C)
1. T.R. GOPAKUMAR, PROPRIETOR,
... Petitioner
Vs
1. THOMAS GEORGE, PROPRIETOR, CRISS CROSS
... Respondent
2. STATE OF KERALA BY GOVT. PLEADER.
For Petitioner :SRI.A.VIJAYAKUMAR
For Respondent :SRI.K.S.MADHUSOODANAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/07/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1620 OF 2003
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Dated 21st July, 2010
O R D E R
Petitioner, the accused in
C.C.202/1999 on the file of Judicial First
Class Magistrate-I, Ernakulam was convicted
and sentenced for the offence under Section
138 of Negotiable Instruments Act.
Petitioner challenged the conviction and
sentence before Sessions Judge in
Crl.A.318/2002. Learned Additional Sessions
Judge on re-appreciation of evidence
confirmed the conviction and sentence and
dismissed the appeal. It is challenged in
the revision.
2. Learned counsel appearing for
the revision petitioner and first
respondent were heard.
CRRP 1620/03
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3. Case of first respondent in the
complaint filed before the learned Magistrate,
which was taken cognizance, was that in
November 1995 petitioner entrusted first
respondent a proprietary concern, publicity
work of his establishment, namely, Gowri
Nandana Herbal Industries, Aluva. It is alleged
that total amount payable for the preparation
of leaf-lets, cartons, screen printing,
stickers and to other advertisement was
Rs.97,912/- and deducting the payment made
Rs.61,912/- was to be paid along with
Rs.4,600/- being interest calculated at 18% per
annum. According to first respondent towards
that amount petitioner issued Ext.P1 cheque
dated 2/2/1996 for Rs.5,000/- and Ext.P2 cheque
dated 6/2/1996 for Rs.47,000/- drawn in his
account in State Bank of Travancore,
CRRP 1620/03
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Thottakkattukara Branch making first respondent
to believe that cheques could be encashed. It
is alleged that Ext.P1 cheque when presented
for encashment was dishonoured on 7/2/1996 and
it was intimated to the first respondent on
20/2/1996 and he contacted the petitioner and
then petitioner remitted Rs.5,000/- by Demand
Draft requesting to hold the cheque for
discharge of the balance amount. It is also
alleged that Ext.P2 cheque was presented for
encashment and was dishonoured on 12/4/1996,
which was intimated to first respondent on
17/4/1996. When first respondent intimated the
dishonour to the petitioner on 24/4/1996, he
paid Rs.10,000/- and thereafter issued Ext.P5
cheque dated 24/4/1996, for Rs.10,000/-
requesting to hold all the three cheques for
discharge of the balance amount within 45 days.
CRRP 1620/03
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It is alleged that Ext.P6 letter was sent to
the petitioner informing that the balance
payable is Rs.66,512/-. Petitioner without
paying the amount sent Ext.P7 reply raising
false contentions. First respondent thereafter
presented Exts.P1 and P2 once again, along with
Ext.P3 cheque and all of them were dishonoured
for want of sufficient funds on 18/6/1996 which
was intimated to first respondent on 4/7/1996.
First respondent sent Ext.P11 notice demanding
the amount covered by all the three cheques
together and petitioner without paying the
amount sent Ext.P12 reply and thereby committed
the offence under Section 138 of Negotiable
Instruments Act. Complaint was filed by first
respondent personally. But when the evidence
was recorded, instead of examining first
respondent, PW1, his brother was examined as
CRRP 1620/03
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power of attorney holder appointed under
Ext.P14 power of attorney. Ext.P14 was executed
on 20/6/2001 whereunder first respondent
appointed petitioner as General power of
attorney to conduct the cases and it is not in
respect of the complaints against the
petitioner alone. Petitioner did not admit
issuance of the cheque either in Ext.P7 reply
to Ext.P6 notice or in Ext.P12 reply sent to
Ext.P11 notice. It is contended by the
petitioner that he had entrusted signed blank
cheques as security to Radhakrishnan Nair, an
employee of first respondent who had contacted
the petitioner promising to do the work for
lesser rate than what was being paid to the
earlier firm and Exts.P2 and P5 cheques were
not issued to the first respondent and they
were not issued towards discharge of any debt
CRRP 1620/03
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or liability.
4. Learned Magistrate and learned
Sessions Judge appreciated the evidence of PW1
and for the failure of the petitioner to give
evidence, accepted the evidence of PW1 and
found the petitioner guilty. As rightly pointed
out by the learned counsel appearing for the
petitioner, it is clear from the judgments of
learned Magistrate and learned Sessions Judge
that material evidence were either overlooked
or ignored. The evidence was not properly
appreciated. In such circumstances, it is
necessary to re-appreciate the evidence. Though
learned counsel appearing for the first
respondent argued that in exercise of the
revisional powers, this court is not to re-
appreciate the evidence, when it is absolutely
clear that material evidence was overlooked and
CRRP 1620/03
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relevant aspects were not considered, this
court though exercising revisional powers, is
bound to re-appreciate the evidence.
5. A reading of the complaint shows
that according to the first respondent total
liability of the petitioner was Rs.97,912/-.
Deducting the payment made, the balance
payable was Rs.61,912/- in 1996. It is the
specific case that out of that amount,
Rs.4,600/- being interest calculated at 18% per
annum was added and Exts.P1 and P2 cheques were
issued. Ext.P1 is for Rs.5,000/- and Ext.P2 is
for Rs.47,000/-. Former is dated 2/2/1996 and
latter is dated 6/2/1996. Paragraph 2 of the
complaint itself shows that Ext.P1 cheque was
dishonoured on 7/2/1996, which was intimated to
the first respondent on 20/2/1996. It is the
allegation in paragraph 5 itself that on
CRRP 1620/03
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getting information of the dishonour first
respondent contacted petitioner. Petitioner
then paid Rs.5,000/- by demand draft and agreed
that Ext.P1 cheque could be retained towards
the liability. The date of payment of
Rs.5,000/- by demand draft is not mentioned in
the complaint. Ext.P13 series are the bills
produced by the first respondent. Ext.P13 is
the bill for Rs.6,282/- dated 8/1/1996. Ext.P13
bill shows that out of that bill, Rs.5,000/-
received by demand draft on 19/2/1996 and
Rs.1,000/- was received by cash and the balance
is shown as Rs.282/-. Ext.P13 shows that
payment of RS.5,000/- was by demand draft on
19/2/1996. This payment falsifies the case in
the complaint that demand draft for Rs.5,000/-
was paid, when petitioner was informed about
the dishonour of the cheque, on getting
CRRP 1620/03
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information that cheque was dishonoured.
Paragraph 5 of the complaint itself shows that
first respondent was aware of the dishonour of
the cheque only on 20/2/1996. If that be the
case, demand draft could not have been given by
the petitioner on the information received by
the first respondent about dishonour of the
cheque. Unfortunately, this aspect was not
considered by both the courts below.
6. Along with Ext.P6 notice demanding
Rs.66,512/- being the balance amount, first
respondent sent Ext.P8 statement of accounts.
Though PW1 deposed that Ext.P8 is the statement
sent by the petitioner, on its face it is
incorrect. Ext.P8 is a statement sent along
with Ext.P6 notice by the first respondent as
stated therein. Ext.P8 shows the amount, which
according to first respondent was payable by
CRRP 1620/03
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the petitioner to him. Amount covered by
Ext.P13(d) bill are shown in Ext.P8. Exts.P13
to 13(d) bills dated 9/2/1996 is for
advertising the ceremony in connection with the
death. It cannot be an advertisement in
respect of the proprietary concern of the
petitioner. When PW1 was questioned about
Ext.13(d) bill, he has no explanation.
Therefore, Ext.P13(d) bill is necessarily to
be eschewed. If that be so, Rs.66,512/- claimed
therein should be less by Rs.9,450/- covered by
Ext.P13(d). Added to this, Ext.P8 bills shows
that there was a claim for Rs.5,580/-, as per a
bill dated 31/5/1996. Such a bill is not
forthcoming. Complaint does not disclose any
liability by the petitioner subsequent to the
issuance of Exts.P1, P2 and P5 cheques.
Therefore, Rs.5,518/- claimed as per bill dated
CRRP 1620/03
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31/5/1996 is also to be deducted from the
amount. Though nothing is stated in Ext.P11
notice or at the time of evidence, with regard
to the payment of Rs.6,000/-, Ext.P8 statement
shows that there has been a payment of
Rs.6,000/- on 31/5/1996 prior to the sending
of Ext.P11 notice. Therefore, on the date of
Ext.P11 notice, there should necessarily be a
further deduction of Rs.6,000/- that what was
claimed in Ext.P6. Evidence of PW1 does not
give any light on the controversies.
7. Evidence of PW1 is to be appreciated
in this backgrounds. As stated earlier, PW1 is
not the complainant. He is only the brother
of the complainant. Though he is also the
power of attorney holder, by a power of
attorney executed by first respondent five
years after the lodging of the complaint,
CRRP 1620/03
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neither in the complaint nor in Ext.P14 power
of attorney it is stated that PW1 was aware of
the transactions involved in this case.
Therefore, as rightly pointed out by the
learned counsel appearing for the petitioner,
evidence of PW1 can only be treated the
evidence of a witness and not that of the
complainant. PW1 has no case that he was
present when Exts.P1, P2 and P5 cheques were
issued. Even though PW1 has stated that
petitioner was contacted over phone when
Exts.P1 and P2 cheques were dishonoured, he has
no case that he contacted the petitioner
personally. If at all, it could only be hearsay
evidence. PW1 has also no case that when
Exts.P1, P2 and P5 cheques were issued, he was
present. Question is in such circumstances,
when petitioner contended that Ext.P1, P2 and
CRRP 1620/03
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P5 cheques were issued as blank cheques, is
there any evidence to prove that cheques were
issued by first respondent. There is no
evidence. These aspects were also not
considered by the learned Magistrate or the
learned Sessions Judge.
8. Even on the admitted facts, the
conviction for the offence under Section 138 of
Negotiable Instruments Act will not stand. As
far as Ext.P1 cheque is concerned, it is the
specific case in the complaint itself that,
when it was dishonoured on presentation first
respondent intimated petitioner and he paid the
amount by demand draft. Therefore, first
respondent could not have presented the cheque
again and prosecuted the petitioner for the
offence under Section 138 on the very same
cheque, unless it is proved that there was an
CRRP 1620/03
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agreement on the date of the payment of
Rs.5,000/- by demand draft, that the said
cheque cold be treated as for payment of the
balance amount. There is no such case.
Similarly, when it is the admitted case of the
first respondent that Ext.P2 cheque was
presented for encashment and dishonoured,
first respondent intimated petitioner about the
dishonour and then he paid Rs.10,000/- by cash.
If that be so, out of Rs.47,000/- covered by
Ext.P2 cheque petitioner paid Rs.10,000/- and
what remains only RS.37,000/-. First
respondent cannot present the same cheque again
and lodge a complaint based on that cheque for
Rs.47,000/-. Added to this, it cannot be
believed that petitioner would again issue
Ext.P5 cheque for Rs.10,000/- or that first
respondent would receive that cheque for
CRRP 1620/03
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Rs.10,000/- when the total liability of the
first respondent was Rs.50,000/- at that time.
On appreciation of the entire evidence, it
could only be found that Exts.P1, P2 and P5
cheques were not issued by the petitioner to
the first respondent in discharge of an
existing debt or liability. Hence conviction of
the petitioner for the offence under Section
138 of Negotiable Instruments Act is not
sustainable.
Revision is allowed. Conviction of the
petitioner for the offence under Section 138 of
Negotiable Instruments Act in C.C.202/1999 on
the file of Judicial First Class Magistrate-I,
Ernakulam as confirmed by Additional Sessions
Judge, Ernakulam in Crl.A.318/2002 is set
aside. Petitioner is found not guilty of the
offence. He is acquitted.
CRRP 1620/03
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M.SASIDHARAN NAMBIAR,
JUDGE.
uj.