IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1215 of 2003()
1. P.J.JOY, OUR ENTERPRISES,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. LEELAMMA ABRAHAM,
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :SRI.R.ANIL
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/06/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.R.P.No.1215 of 2003
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Dated this the 28th day of June, 2010
ORDER
Petitioner, the accused in S.T.No.263/1991, was
convicted and sentenced for the offence under
Section 138 of Negotiable Instruments Act by Chief
Judicial Magistrate, Kottayam. Petitioner
challenged the conviction and sentence before
Sessions Court, Kottaym in Crl.A.No.172/2000.
Learned Additional Sessions Judge, on re-
appreciation of evidence, confirmed the conviction,
but modified the sentence to simple imprisonment
for two months, confirming the fine which was
directed to be paid as compensation. This revision
is filed challenging the conviction and sentence.
2. Learned counsel appearing for the petitioner
was not present. Learned counsel appearing for the
second respondent was heard and perused the
records.
3. Second respondent/complainant lodged a
complaint before Chief Judicial Magistrate’s Court,
Kottayam alleging that petitioner issued Exhibit P1
Crl.R.P.No.1215 of 2003 2
cheque drawn in Kottayam Branch of Catholic Syrian
Bank for Rs.1,30,000/- and when the cheque was
presented for encashment, under Exhibit P2, it was
dishonoured and Exhibit P3 intimation was received
and Exhibit P4 notice was issued by the second
respondent demanding the amount covered by Exhibit
P1 cheque and it was received by the petitioner
under Exhibit P6 acknowledgement, but he failed to
pay the amount and thereby committed the offence
under Section 138 of Negotiable Instruments Act.
Petitioner pleaded not guilty.
4. Learned Chief Judicial Magistrate, on the
evidence of second respondent as PW1 and the
Manager of the Bank as PW2 and Exhibits P1 to P7,
convicted the petitioner, finding that evidence of
PW1 establishes that Exhibit P1 cheque was issued
towards discharge of an existing liability. The
case of the petitioner that transaction was with
the husband of the second respondent and in that
transaction, three cheques were issued and no sales
Crl.R.P.No.1215 of 2003 3
tax clearance was obtained and no intimation was
received and therefore, petitioner is not liable to
pay the amount covered by the cheque was not
accepted by the learned Chief Judicial Magistrate.
In appeal, learned Additional Sessions Judge
confirmed that finding.
5. The records of the learned Chief Judicial
Magistrate show that petitioner was questioned
under Section 313 of the Code of Criminal Procedure
on 22.2.2000 after closing the evidence of the
second respondent on 14.2.2000. The case was then
posted for filing witness list by the accused.
Records show that a witness list was filed and an
application was filed seeking summons to one
witness, to produce documents. The proceedings
paper also shows that though the witness was
present on 5.4.2000, as documents were not
available he was not examined. On 11.4.2000 the
evidence was closed and posted for arguments.
Petitioner thereafter filed an application to
Crl.R.P.No.1215 of 2003 4
reopen the case pointing out that he has to examine
the witness. It was allowed and summons was issued
to the witness to produce documents. Case was
posted to 26.5.2000. On 26.5.2000 the learned
Magistrate recorded that “witness present. She has
reported that documents are not available. She is
discharged. Evidence is closed. Hearing to
8.6.2000”. The proceedings show that a petition
was thereafter filed by the petitioner for
permitting to examine herself. It was dismissed.
It is thus clear that the Chief Judicial Magistrate
disposed the case without providing adequate
opportunity to the petitioner to adduce evidence.
6. Though it is not alleged in the complaint,
as PW1 second respondent deposed that Exhibit P1
cheque was issued towards the payment for the
timber supplied to the petitioner. When she was
questioned further she admitted that there are
records to establish the transaction and she is
willing to produce those records. As second
Crl.R.P.No.1215 of 2003 5
respondent did not produce the documents,
petitioner filed an application directing her to
produce the documents. It is seen that an
affidavit was filed by the second respondent that
those records are not available. In the light of
the contentions raised by the parties, for the sole
reason that a cheque was issued which according to
the petitioner was not issued towards discharge of
an existing liability or debt, an offence under
Section 138 of the Negotiable Instruments Act will
not be attracted. When the petitioner has a case
that he has no transaction with the second
respondent and to establish his case a witness list
was filed including examination of the husband of
the second respondent, learned Magistrate was not
justified in closing the evidence, when examination
of the witnesses was not given up. In such
circumstances, interest of justice warrants that
the case is to be remanded to Chief Judicial
Magistrate for fresh disposal after granting
Crl.R.P.No.1215 of 2003 6
opportunity to the accused to examine the witnesses
sought for in the witness list. On such evidence
being adduced it is for the Chief Judicial
Magistrate to decide whether there was a
transaction between the complainant/accused and
whether Exhibit P1 cheque was issued towards
discharge of any such debt or liability.
7. Revision is allowed. Conviction of the
petitioner for the offence under Section 138 of the
Negotiable Instruments Act as confirmed in
Crl.A.No.172/2000 is set aside. S.T.263/1991 is
remanded to Chief Judicial Magistrate for fresh
disposal in accordance with law, after granting
opportunity to the petitioner/accused to examine
the witnesses shown in the witness list. It is
made clear that it is for the petitioner to make
available the witnesses and to take steps to issue
summons if their presence could be procured only on
such summons. The party shall appear before the
Chief Judicial Magistrate Court on 6.8.2010 and
Crl.R.P.No.1215 of 2003 7
petitioner will take steps immediately on
appearance and shall not protract the case. Chief
Judicial Magistrate to dispose the case
expeditiously. Sent back records to the Chief
Judicial Magistrate immediately.
M.Sasidharan Nambiar,Judge
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