IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 135 of 2001()
1. K.V.PAUL
... Petitioner
Vs
1. GEORGE @ WILSON
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.ALAN PAPALI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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CRL. R.P.No. 135 of 2001
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Dated this the 16th day of October, 2008
O R D E R
Heard both sides.
2. Revision petitioner is aggrieved by the order dated
25/10/2000 passed by learned Judicial First Class Magistrate,
Erattupetta under Section 245(1) of the Code of Criminal Procedure
(for short, ‘the Code’) discharging the first respondent of the charges
under Section 420 of the Penal code.
3. The case was instituted on a private compliant filed by the
revision petitioner. Learned counsel for revision petitioner submitted
that the order under challenge is illegal in that learned magistrate has
evaluated the evidence as if it is an ultimate disposal of the case.
According to the learned counsel, Section 245(1) of the code did not
warrant such an appreciation of the evidence since what the court
below ought to have looked into is only whether a case has been made
out against the first respondent which if unrebutted would warrant his
conviction. Counsel for the first respondent contented that no such case
CRL. R.P.No. 135 of 2001
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is made out.
4. Case of revision petitioner is that the first respondent
borrowed Rs.1,40,000/- from him on 5/06/1995, first respondent issued
Exhibit P1, cheque dated 12/06/1995 promising that the cheque would
be honoured on presentation, he believed that word of the first
respondent and lent the money. Revision petitioner attempted to encash
the cheque on 12/06/95 but learned that there was no sufficient fund in
the account of the first respondent. He informed the first respondent
about that. First respondent promised the revision petitioner that he
will discharge the liability in 10 installments and gave a fresh cheque.
They entered into Exhibit P2, agreement to that effect on 12/06/1995.
But the first respondent did not comply with the agreement. Hence
revision petitioner was constrained to present the cheque dated
12/06/1995 for encashment. It was returned as payment was stopped by
the first respondent. Notice was issued to the first respondent on
11/08/1995 to which the first respondent sent Exhibit P8, reply.
Revision petitioner preferred complaint (C.C. No. 421 of 1995) in the
court below for offence punishable under under Section 138 of the
CRL. R.P.No. 135 of 2001
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Negotiable Instruments Act and during the inquiry revision petitioner
learned that the first respondent had issued stop memo even as on
4/02/1995. He was advised to withdraw the complaint for the offence
under Section 138 of the Negotiable Instruments Act. Thereafter, he
field the present complaint alleging offence punishable under Section
420 of the Penal Code. The stand taken by first respondent in Exhibit
P8, reply dated 29/08/1995 is that the cheque leaf referred to in
Exhibit P5 notice dated 11/08/96 (i.e. Exhibit P1) was found missing
from his office on 2/02/1995 and the very next day itself, he informed
his bank about that and requested to stop payment. According to the
first respondent, revision petitioner stealthily got that cheque leaf.
5. In the court below revision petitioner gave evidence as
PW1 and examined two witness. PW2, manager of the drawee bank
stated that the cheque was dishonoured as payment was stopped. PW3
was examined to prove the alleged transaction.
6. Counsel for first respondent contends that even as per
allegation made by revision petitioner, only a post dated cheque was
issued and hence question of cheating did not arise.
CRL. R.P.No. 135 of 2001
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7. It is seen from the order under challenge that in para 10,
learned magistrate observed that unless there is clear and convincing
evidence that first respondent had either dishonestly or fraudulently
induced revision petitioner on whom he played the deception, no
offence of cheating can come out from it. Learned magistrate also
observed that a dishonest intention cannot be inferred from the mere
fact of a subsequent breach of promise. It is further observed by the
learned magistrate that there is no clear and conclusive evidence of the
criminal intention of the first respondent at the time when the offence
is said to have been committed. Counsel for revision petitioner is
justified in his contention that learned magistrate has transgressed the
limits of section 245(1) of the Code, where learned magistrate is only
required to consider whether a case which if unrebutted would warrant
conviction has been made out. It is seen that learned magistrate has also
not taken into account Exhibit P8 where, the date of issue of stop
memo is given.
8. On going through the order under challenge, I am
persuaded to think that learned magistrate has not considered the matter
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in the light of the requirement under Section 245(1) of the Code. The
order under challenge is therefore liable to be set aside.
Resultantly, this revision petition is allowed. The order under
challenge is set aside. The case is remitted to the court below for fresh
consideration of the matter in the light of the binding authorities as the
extent of materials required under Section 245(1) of the Code. Learned
magistrate shall consider the matter untrammeled by any observation
contained in this order and pass appropriate orders. Parties shall appear
in court below on 5/12/2008. Needless to say that court below to
expedite the disposal of the case.
THOMAS P. JOSEPH, JUDGE
scm