IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 571 of 2001(A)
1. REMA
... Petitioner
Vs
1. M.T.JOSEPH
... Respondent
For Petitioner :SRI.A.VIJAYAKUMAR
For Respondent :SRI.K.PRABHAKARAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :05/12/2008
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.571 of 2001
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Dated this the 5th day of December, 2008.
O R D E R
Revision Petitioner faced trial in the Court of Learned
Judicial 1 Class Magistrate – I, Aluva for the offence punishable
under Section 138 of the Negotiable Instruments Act. She was
convicted and sentenced to pay a fine of Rs. 35,000/-. In appeal,
learned Additional Sessions Judge confirmed the conviction and
sentence. Hence this revision.
2. When this revision petition came up for hearing before
me on 4.12.2008, there was no representation for the 1st
respondent and hence the case was posted this day for hearing
finally. There is no representation for the 1st respondent today
also.
3. I heard learned counsel for revision petitioner and the
public prosecutor.
Following points arise for decision:
(1) Whether revision petitioner issued the cheques in
question in favour of 1st respondent for discharge of legally
enforceable debts or liability.
(2) Whether sentence is legal.
Crl.R.P.No.571 of 2001 -2-
4. Perused the records.
Point 1: Case pleaded by the 1st respondent and spoken by
him as PW1 is that revision petitioner approached him with an
offer to arrange a job for him abroad and received Rs.25,000/-
for the said purpose. Revision petitioner was not able to arrange
the job. On his demand for repayment of the amount, revision
petitioner issued two cheques in his favour; Ext.P1 dated
8.10.1992 for Rs.15,000/- and Ext.P1(a) dated 10.10.1992 for
Rs.10,000/-. He presented those cheques for encashment on
21.10.1992, but the same were returned as funds were
insufficient. 1st respondent again presented the cheques on
3.12.1992 through Federal Bank, Angamaly branch. Cheques
were dishonourned for the second time also, about which the 1st
respondent got intimation on 24.12.1992. Regarding that, notice
was issued to the revision petitioner on 8.1.1993. That was
served on 9.1.1993. There was no payment as demanded in the
notice and hence, the complaint.
5. Fact of dishonour of cheques for insufficiency of funds is
not in dispute before me and is proved by Exts.P2 and P3.
Service of notice is proved by Exts.P4 and P6. Then the question
for consideration is whether revision petitioner issued the
Crl.R.P.No.571 of 2001 -3-
cheques in question for the discharge of any legally enforceable
debt or liability. The plea raised by the revision petitioner is that
she had no transaction with 1st respondent but her husband, Sri.
Sasi Kumar had some transactions with the 1st respondent based
on which she was harassed by the 1st respondent, and some
other persons including the 1st respondent brought her husband
from Angamaly and she was compelled to issue the cheques in
question to avoid harassment revision petitioner examined DWs.
1 and 2 and proved Exts.D1 to D3. Evidence given by DWs. 1
and 2 is that 1st respondent and themselves had transactions
with the husband of revision petitioner who had agreed to
arrange visa for job abroad, husband of the revision petitioner
failed to do so and thereon they all gathered in the presence of
the husband of revision petitioner who executed Ext.D1,
agreement. Based on that, 1st respondent and DW2 filed suits
before the Civil Courts. Ext.D1 is a copy of the plaint filed by the
1st respondent against the husband of revision petitioner. Ext.D3
is copy of plaint filed by DW2 against the husband of revision
petitioner. Learned counsel for revision petitioner contends that
the Courts below went wrong in holding that revision petitioner
issued the cheques in question for the discharge of legally
Crl.R.P.No.571 of 2001 -4-
enforceable debt or liability.
6. It is now settled that mere admission or proof of
signature in the Negotiable Instrument does not tantamount to
admission or proof of its due execution though admission or
proof of signature may go a long way in proving its due
execution. Here, execution of Exts.P1 and P1(a) in favour of 1st
respondent is not admitted by the revision petitioner. According
to her, she handed over Exts.P1 and P1(a) to the 1st respondent
to avoid harassment. It is important to bear in mind that though
there is a presumption under Section 139 of the Act that the
cheque is issued for the discharge of debt or liability, that
presumption as held by Hon’ble Supreme Court does not extend
to the legality of recoverability of the debt or liability. These are
the matters to be proved by the 1st respondent.
7. Going by version of the 1st respondent as PW1, it would
appear that he allegedly paid Rs. 25,000/- to the revision
petitioner some time in the year 1982, pursuant to the promise
made by the revision petitioner, he went to Bombay in
connection with securing the job, returned, continued his
business and while so revision petitioner issued Exts.P1 and
P1(a) on 8.10.1992 and 10.10.1992. Therefore, I am to
Crl.R.P.No.571 of 2001 -5-
understand that the 1st respondent allegedly paid Rs.25,000/- to
the revision petitioner some time in the year 1982 before the 1st
respondent allegedly went to Bombay. It is also the version of
the 1st respondent that before the revision petitioner came to his
shop offering to secure job for him he had no acquaintance with
her. In spite of that, without taking a document from the
revision petitioner, at least somebody witnessing the alleged
payment, 1st respondent is said to have paid Rs.25,000/- to the
revision petitioner for the mere offering to secure a job abroad.
That case of 1st respondent is quite difficult to believe. It is also
difficult to think that though 1st respondent went to Bombay
sometime in the year 1982 and returned without being able to
get the job as offered by the revision petitioner and thereafter he
has been demanding payment of the amount and the revision
petitioner who did not oblige that demand of the 1st respondent
for about 10 years, on a fine morning on 8.10.1992 and
10.10.1992 issued the cheques in favour of the 1st respondent
notwithstanding that not even a scrap of paper was with the first
respondent to evidence payment of money to the revision
petitioner. There is no evidence to show that between 1982 and
1992, any demand was made by the 1st respondent to the
Crl.R.P.No.571 of 2001 -6-
revision petitioner to pay the amount.
8. That there was transactions for the first respondent with
Sasi Kumar, husband of the revision petitioner is admitted when
the 1st respondent was examined as PW1. Sasi Kumar had
offered to procure job for his close relative and received money
from him, did not procure job and that culminated in Ext.D2.
Ext.D1 refers to the payment made by the 1st respondent and
others. Based on Ext.D1, it is admitted and proved by Ext.D2
that 1st respondent filed O.S. No. 787 of 1995 for recovery of
money from the husband of the revision petitioner. Similarly,
DW2 also filed a suit against the husband of the revision
petitioner as O.S. No. 791 of 1995 as seen from Ext.D3. It is
admitted by the 1st respondent and spoke by DWs.1 and 2 also
that for the purpose of executing Ext.D2, agreement they had
met together and wanted Sasi Kumar to execute the agreement.
DW1 stated that Sasi Kumar was taken by them for the purpose
of executing the agreement. It is difficult to believe that the 1st
respondent had paid money to Sasi Kumar as well as his wife,
revision petitioner for procuring job. Evidence on record justify
the contention of the revision petitioner that she had no
transaction with 1st respondent, and that she happened to give
Crl.R.P.No.571 of 2001 -7-
the cheques to avoid harassment. I also bear in mind that the
responsibility of the revision petitioner is not to disprove the
case set up by the 1st respondent. She need only probabilise her
version. It is not shown that there was any legally recoverable
debt or other liability in favour of the 1st respondent. Courts
below have not properly appreciated the evidence. Materials in
the case do not justify conviction of the revision petitioner.
Conviction and sentence are only to be set aside. It follows the
sentence imposed on revision petitioner is liable to be set aside.
9. It is submitted by the learned counsel for revision
petitioner that a sum of Rs.5,000/- has been deposited in the trial
court. It is made clear that if there is no other encumbrance on
that deposit, revision petitioner can withdraw the same.
This revision petition succeeds. Conviction and sentence on
the revision petitioner are set aside and she is acquitted of the
charge against her. Bail bond is canceled. Criminal
Miscellaneous Petition No. 2743 of 2001 shall stand dismissed.
THOMAS.P.JOSEPH, JUDGE
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