IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1452 of 2008()
1. THAZHATHU VEETTIL DEVI,
... Petitioner
Vs
1. PUTHIYAVEETTIL KRISHNAN,S/O.KRISHNAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.A.JOSEPH
For Respondent :SRI.K.P.SUDHEER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/01/2009
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.R.P. No. 1452 of 2008
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Dated this the 30th day of January, 2009
O R D E R
The revision petitioner is the accused and first respondent the
complainant in C.C. No. 166 of 2002 on the file of Additional Chief
Judicial Magistrate, Thalassery. Revision petitioner was convicted
and sentenced for the offence under Section 138 of the Negotiable
Instruments Act. Though revision petitioner challenged it before
Sessions Court, Thalassery in Crl. Appeal No. 650 of 2002 the
conviction was confirmed and sentence was modified to
imprisonment till rising of court and compensation of Rs. 70,000/-.
Revision is filed challenging the conviction and sentence.
2. Learned counsels appearing for revision petitioner and
respondent were heard.
3. Learned counsel for the revision petitioner argued that
revision petitioner in Ext.P6 reply notice itself raised a contention
that she did not issue any cheque and she lost the cheque and first
respondent would have obtained the cheque and fabricated her
signature and she is not liable to pay any amount and still there is
Crl.R.P. No. 1452 of 2008 -2-
no evidence to prove that the revision petitioner issued Ext.P1
cheque towards discharge of any debt or liability and in such
circumstances the conviction is not sustainable. The learned
counsel argued that when the evidence of first respondent as PW1
is insufficient to prove any borrowal or the cheque was issued
towards repayment of any amount due finding of the courts below
that revision petitioner committed an offence under Section 138 of
Negotiable Instruments Act is not sustainable. The learned counsel
also argued that even the signature in Ext.P1 cheque is not that of
the revision petitioner and courts below should have sent the
signature to an expert. The learned counsel appearing for the first
respondent argued that evidence of PW1 establishes that Ext.P1
cheque was issued by the revision petitioner towards repayment of
the amount borrowed and therefore the conviction is perfectly
correct.
4. On going through the judgments of the courts below as
well as the evidence on record, it is clear that the evidence was not
properly appreciated. In spite of the fact that revision petitioner
specifically contended in Ext.P6 reply notice, sent to the first
respondent for the demand raised for the amount under the
dishonored cheque under Section 138(b) of Negotiable Instruments
Crl.R.P. No. 1452 of 2008 -3-
Act, unambiguously that her cheque was lost and first respondent
might have forged the signature in that cheque and presented
before the bank, no evidence was adduced to prove the execution
or the signature in the cheque. First respondent when examined as
PW1, in chief examination did not depose anything on the
execution of the cheque. In cross examination PW1 deposed that
the cheque was written and brought by the revision petitioner and
signed in his presence and handed it over to him. Even then, PW1
has no case that revision petitioner acknowledged before signing
that what was written in Ext.P1 is correct or acknowledged it and
signed in Ext.P1. Neither in chief examination nor in cross
examination PW1 has a case that Ext.P1 cheque was issued as a
post dated cheque. On the other hand if the evidence in chief
examination is believed the amount was paid on 20.8.2000 as
revision petitioner agreed to repay the amount within one month
and thereafter Ext.P1 cheque was issued on 20.9.2000. As per
Ext.P4 notice when the amount was borrowed revision petitioner
agreed to repay the same and the cheque was issued with date
20.9.2000. Even then there was no case that the cheque was
issued at the time when the amount was borrowed. Though
because of the statement that cheque was issued with date
Crl.R.P. No. 1452 of 2008 -4-
20.9.2000 it can be interpreted that the cheque was given as a post
dated cheque, PW1 did not depose that Ext.P1 cheque was issued
at the time when the amount was borrowed or at any time prior to
the date seen in Ext.P1.
5. If the evidence of PW1 that a written cheque was brought
by the revision petitioner and signed in his presence and handed
over to him is believed, there should have been a pre-agreement
between the revision petitioner and first respondent with regard to
the amount and the amount would be repaid on such and such day
as otherwise revision petitioner cannot be expected to write a
cheque with the amount and the date and bring it to be signed in
the presence of the PW1 as deposed by him. Unfortunately, these
aspects were not considered by the courts below. Similarly, in
cross examination PW1 deposed that he had borrowed Rs. 15,000/-
from a bank for his business with liability to pay interest. It is such
a person who is claiming that Rs. 70,000/- was granted as loan to
the revision petitioner and that too without liability for the payment
of interest. Unfortunately this aspect was also not taken into
consideration by the courts below or even by the counsel appearing
for the revision petitioner while cross examining PW1. The learned
counsel appearing for the first respondent, at this stage, submitted
Crl.R.P. No. 1452 of 2008 -5-
that as the revision petitioner is seeking a remand, the case may be
remanded to the trial court granting opportunity to both the
parties to adduce further evidence. As the courts below did not
consider these relevant and material aspects, in the interest of
justice a further opportunity is to be granted to both the parties to
adduce evidence in support of their case.
Hence revision is allowed. The conviction of revision
petitioner in C.C. No. 166/2002 as confirmed in Crl. Appeal No.
650/2002 is set aside. The case is remanded to Additional Chief
Judicial Magistrate for fresh disposal in accordance with law after
affording opportunity to both the complainant and the accused to
adduce further evidence. It is made clear that the Magistrate is
competent to forward Ext.P1 cheque to an expert, if it is found
necessary and dismissal of the petition filed earlier by the accused
will not be a bar for exercising that power. Parties are directed to
appear before Additional Chief Judicial Magistrate Thalassery on
26.2.2009. Send back the records immediately.
M.SASIDHARAN NAMBIAR
JUDGE
rhs