IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1475 of 2009()
1. A.M.KUMARI, W/O GOPINATH,
... Petitioner
Vs
1. VINODHAN, S/O THINDIYATH PARAN,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.O.D.SIVADAS
For Respondent :SRI.RAJIT
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1475 of 2009
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Dated this the 15th day of June, 2009.
ORDER
This revision is in challenge of judgment of learned I Additional Sessions
Judge, Thrissur in Crl.Appeal No.330 of 2006 confirming conviction but modifying
sentence of petitioner for offence punishable under Section 138 of the
Negotiable Instruments Act (for short, “the Act).
2. Case of respondent No.1 is that petitioner borrowed Rs.1,50,000/-
from him to meet educational expenses of her son and for the discharge of that
liability issued Ext.P1, cheque dated 30.4.2001. That cheque was dishonoured
for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation,
respondent No.1 issued statutory notice to the petitioner. Issue and service of
statutory notice on petitioner are proved by Exts.P3 and P4. Ext.P5 is a letter
said to be issued by the husband of petitioner to respondent No.1. Petitioner
denied that she had any transaction with respondent No.1 and claimed that a
few signed blank cheques of herself and her husband were given to one
Raghavan on a promise that the latter will take her husband as a partner in the
web site business. Raghavan did not comply with the promise. Later she learnt
that Raghavan borrowed money from several persons making use of those
signed cheques. Thereon in the year, 2001 petitioner preferred a complaint to
the police against Raghavan. That case is pending against Raghavan as
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C.C.No.105 of 2001. Since Raghavan absconded case was included in the long
pending register. Her further case is that respondent No.1 is a friend of
Raghavan and one of the signed blank cheque leaves has been misused.
Petitioner proved Exts.D1 to D5. Learned magistrate was not impressed by the
contention raised by petitioner, found her guilty, convicted and sentenced to
undergo simple imprisonment till rising of court and pay Rs.1,50,000/- as
compensation to respondent No.1. Petitioner took up the matter in appeal.
When the matter was pending in the appellate court, petitioner filed an affidavit
requesting that hearing of appeal be adjourned towards the end of January,
2008 to facilitate her paying the amount covered by cheque. She stated in the
affidavit that she is not capable to raise money. She had applied for a loan from
provident fund but the staff in the office of Accountant General are on strike and
hence she is unable to get it. When the appeal was taken up for hearing, both
sides argued in support of their contention. Learned I Additional Sessions Judge
after referring to the contentions raised, observed in paragraph ten (10) of the
judgment that since liability under the cheque is admitted by petitioner in the
affidavit dated 27.11.2007 it is not necessary to go into the other contentions
raised by both sides and accordingly, appeal was dismissed. That judgment is
under challenge.
3. Learned counsel for petitioner would contend that judgment of
appellate court is illegal in that, points raised for consideration in appeal have not
been dealt with. Instead, appellate court has proceeded on the assumption that
there is a plea of guilty by petitioner. It is also submitted by counsel that there
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is no admission of guilt in the affidavit dated 27.11.2007. Counsel for
respondent No.1 contended that appellate court was competent to look into the
affidavit of the petitioner which admitted liability under the cheque which is the
very substratum of the complaint and hence petitioner is no justified in
contending that her affidavit should not have been looked into.
4. I have gone through the affidavit dated 27.11.2007 filed by
petitioner in the appellate court. That affidavit stated that petitioner is prepared
to pay the amount covered by cheque and for the reasons stated therein and
already indicated above, requested that hearing of the appeal be postponed till
the end of January, 2008. I am unable to understand that affidavit was
amounting to a plea of guilt as understood under law. What is stated in the
affidavit is only that petitioner is prepared to pay the amount covered by cheque.
Non-payment of amount by itself would not constitute an offence under Section
138 of the Act. Necessary requirements to make out an offence as provided in
the said section, one of which being that petitioner issued the cheque in favour of
respondent No.1 for a legally enforceable debt/liability are to be established. It
is for respondent No.1 to prove that those necessary ingredients to constitute
offence under Sectio0n 138 of the Act are proved and, if he has adduced
evidence in that line, it is for the appellate court to consider whether verdict of
guilt entered by learned magistrate is justified in law and on facts. Going by
Sections 353 and 354 of the Code of Criminal Procedure, judgment of appellate
court must state the points for consideration and the decision arrived at on such
points. Even if it is assumed that the appeal which is already admitted is stated
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to be not pressed, as it is a matter involving conviction and sentence affecting
liberty of the person concerned it is the duty of the appellate court to consider
whether on the evidence on record conviction of that person is sustainable and
if not, notwithstanding that the appellant does not want to pursue the appeal, the
appeal has to be allowed. In this case appellate court for the reason of
petitioner offering to pay the amount covered by cheque if given time, has not
gone into the records before it and satisfied itself whether the conviction and
sentence imposed on petitioner are legally sustainable. To that extent judgment
of the appellate court suffered from illegality.
5. Learned counsel for respondent No.1 argued that assuming that
appellate court has illegally or irregularly exercised the jurisdiction, this Court in
revision can consider the case on its merits and a remand is not called for. This
is not a case where the appellate court has exercised its jurisdiction illegally or
irregularly. Instead it is a case where appellate court has not at all exercised
the power conferred on it as an appellate court. Therefore I do not consider it
just, legal or proper for this Court to consider whether there was merit in the
appeal preferred by the petitioner. That being the function of the appellate court
has to be done by that court.
6. In the light of what I have stated above, judgment of the appellate
court which is under challenge in this revision is not sustainable and is liable to
be set aside.
7. Learned counsel for petitioner submitted that this matter was
pending in the appellate court from the year 2006 onwards and that cheque
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itself is dated 30.4.2001. Learned counsel requested that direction be issued to
the appellate court for a time bound disposal of appeal. In the facts and
circumstances of the case, I am inclined to accept that request.
Resultantly this revision succeeds. Judgment of learned I Additional
Sessions Judge, Thrissur in Crl.Appeal No.330 of 2006 is set aside and the
appeal is remitted to that court for fresh disposal on merit. Learned I Additional
Sessions Judge shall dispose of the appeal as expeditiously as possible and at
any rate within two months from the date of receipt of records in that court.
Registry is directed to send the records to the appellate court forthwith. Parties
shall appear in the appellate court on 15.7.2009.
Crl.M.A.No.4449 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks