High Court Kerala High Court

Rema vs M.T.Joseph on 5 December, 2008

Kerala High Court
Rema vs M.T.Joseph on 5 December, 2008
       

  

  

 
 
  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
                  ==================
                     Crl.R.P.No.571 of 2001
                  ==================
         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

rhs