Biji Biju v. Sree Gokulam Chit & Finance Co. (P) Ltd and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940** ## **Crl.Rev.Pet.No. 1304 of 2014** **AGAINST THE JUDGMENT IN CRA 60/2013 of Ist ADDITIONAL DISTRICT AND SESSIONS COURT,THODUPUZHA DATED 29-04-2014** **AGAINST THE JUDGMENT IN ST 3/2011 of J.M.F.C.-II,THODUPUZHA REVISION PETITIONER/S:** **BIJI BIJU AGED 43 YEARS W/O.BIJU GEORGE, RESIDING AT VAZHACHALIL HOUSE, MUKKUDAM POST, KONNATHADY VILLAGE, KALLARKUTTY, IDUKKI DISTRICT.** **BY ADV. SRI.S.JIJI** ## **RESPONDENT/S:** **1 SREE GOKULAM CHIT & FINANCE CO. (P) LTD ARCO ROAD, KODAMBAKKAM, CHENNAI-600024, TAMILNADU, REPRESENTED BY MR.C.K.SURJITH, S/O.C.K.KUMARAN, DIVISIONAL MANAGER.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SMT.C.V.RAJALAKSHMI** ## **OTHER PRESENT:** ## **E C BINEESH PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No. 1304 of 2014 -2- ## **ORDER** The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act, 1881, (for short “the N.I.Act”). 2. Heard. 3. The learned counsel for the revision petitioner has argued that since there is no material to prove that the amount covered by Ext. P8 cheque was due to the complainant from the revision petitioner as on the date of the cheque, the conviction and sentence passed by the courts below cannot be sustained. 4. The learned counsel for the first respondent on the other hand has argued that since the signature has Crl.Rev.Pet.No. 1304 of 2014 -3- been proved to be that of the accused, the presumption under Section 138 of the N.I.Act is available in favour of the complainant and consequently, the conviction and sentence were justified. 5. In this case, in order to prove the case of the complainant, PW1 and PW2 were examined. Both PW1 and PW2 stated that the interest calculated could be revealed from Ext. P4 ledger extract. Ext. P8 cheque is for Rs. 1,37,800/-. Ext. P4 does not show that the amount covered by Ext. P8 cheque was due to the complainant from the revision petitioner as on the date of the cheque. How the interest was calculated is also not seen stated in Ext. P4. Ext. P6 is the guarantee agreement produced by Crl.Rev.Pet.No. 1304 of 2014 **==> picture [220 x 8] intentionally omitted <==** the complainant. Ext. P5 is the debit acknowledgment dated 8-9-2008 which would show that an amount of Rs. 1,50,000/- was due to the complainant on 8-9-2008 from the revision petitioner. In Ext. P5, the total amount of remittance was seen written after erasing the amount written earlier. There is also manifest correction in respect of the future dues written in Ext. P5 in words and figures. Therefore, by no stretch of imagination, Ext. P5 can be taken as an authenticated document, particularly when no explanation had been given by PW1 or PW2 for the said correction. 6. The Apex Court in M.S. Narayana Menon Alias Mani v. State of Kerala and another [(2006) 6 SCC Crl.Rev.Pet.No. 1304 of 2014 -5- 39] held that in case of dishonour of a cheque alleged to have been issued towards outstanding dues in business dealing, if the account books are not produced by the complainant, the contention of the accused that the cheque was issued as security can be believed and the conviction can be set aside. 7. In this case, the revision petitioner was admittedly not the subscriber of the chit. It was contended that the revision petitioner was a guarantor of the chit conducted by the complainant. Since the subscriber of the chit did not pay the chit amount, the guarantor on demand issued Ext. P8 cheque, is the contention of the complainant. Eventhough the revision Crl.Rev.Pet.No. 1304 of 2014 -6- petitioner contended that she did not issue any such cheque and the amount covered by the cheque was not due to the complainant from the revision petitioner, the complainant did not incline to produce the details of the account indicating that the amount covered by Ext. P8 cheque was due to the complainant from the revision petitioner. Ext. P9 would show that one of the reasons for the dishonour of the cheque was that the signature of the drawer was different. The above fact coupled with the fact that Ext. P4 does not show that the amount covered by Ext. P8 cheque was due to the complainant from the revision petitioner would indicate that the complainant could not establish that the revision Crl.Rev.Pet.No. 1304 of 2014 **==> picture [220 x 8] intentionally omitted <==** petitioner executed Ext. P8 cheque as contemplated under Section 138 of the Negotiable Instruments Act and in the said circumstances, the conviction and sentence passed by the courts below cannot be sustained and consequently, I set aside the same. In the result, this Revision Petitions stands allowed, setting aside the conviction and sentence passed by the courts below under Section 138 of the N.I.Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged. Needless to state that if the revision petitioner had already deposited any amount before the trial court Crl.Rev.Pet.No. 1304 of 2014 -8- pursuant to the direction of this Court, the revision petitioner is entitled to reimbursement of the said amount from the trial court. Dated this the 12[th] day of September, 2018. ani/ **Sd/-B.SUDHEENDRA KUMAR JUDGE** **/true copy/**