Mathai v. Biju Cherian and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933 CRRP.No. 702 of 2001 ( ) -----------------------CRA.260/1999 of VTH ADDL. SESSIONS JUDGE, ERNAKULAM CC.255/1996 of JFCM COURT-II, MUVATTUPZHA REVISION PETITIONER/ APPELLANT/ACCISED: ---------------------- MATHAI, S/O.MATHAI, KACHIRAYIL HOUSE, PUNNAMATTOM KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS/RESPONDENT/COMPLAINANT: --------------- 1. BIJU CHERIYAN, S/O.CHERIYAN, THOMMIKKUDIYIL HOUSE, PAINGOTTOR KARA, KADAVOOR VILLAGE (DEAD) REPRESENTED BY THE LEGAL REPRESENTATIVE NAMELY FATHER CHERIYAN, S/O.ISSAC THOMMIKKUDIYIL HOUSE, PAINGOTTOOR KARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. R1 BY SRI.BRIJESH MOHAN SRI.K.JAJU BABU R2 BY P.P.SMT.JASMINE V.H. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** ## **---------------------------------------------------Crl.R.P.No.702 of 2001 ---------------------------------------------------Dated this the 30th day of January, 2012** ## **Order** The accused in a case filed under Section 138 of the N.I.Act challenges the conviction and sentence concurrently passed against him. The learned counsel for the petitioner submits that there was no proper appreciation of evidence by the courts below and that the appreciation of evidence was wholly erroneous. The case of the complainant is that a sum of Rs.3 lakhs was paid on 2.1.1995 and to discharge that liability Ext.P5 cheque was issued by the accused. That contention was resisted by the accused contending that there was absolutely no transaction between the accused and the complainant whereas there was a transaction between the accused and one Biju Thomas, the brother-in-law of the complainant. According to the accused, he had borrowed some money from Biju Thomas and at that time the accused had handed over a signed blank cheque leaf and signed blank papers and that signed blank paper was used to convert into an agreement for sale of the property and based on that agreement a suit for specific performance was filed by Biju Thomas as Crl.R.P.702/2001 2 O.S.No.93 of 1996 before the Sub Court, Muvattupuzha. It is also contended that the signed blank cheque leaf was subsequently filled up by the complainant Biju Cherian showing his name as payee and also putting the figure ( the amount) and the date therein to suit his convenience and after presenting the said cheque and sending a statutory notice the complaint was filed. According to the accused, Biju Thomas who was the brother-inlaw of the complainant handed over that signed blank cheque leaf to the complainant and this case was foisted against the accused. 2. The complainant died prior to his examination in court. Hence the father of the complainant was examined as P.W.1. The Bank Manager was examined as P.W.2. It is submitted by the learned counsel for the accused that on going through the evidence given by P.W.2 it can be seen that he at first stated before the court that he did not see the cheque being filled up by anybody. In other words, he did not see the accused or the complainant filling up the cheque. He has also stated that he did not see the accused signing the original of Ext.P5 cheque. The original of Ext.P5 cheque was produced before the Sub Court, Muvattupuzha in O.S.No.114 of 1996 which was the suit filed by Biju Cheriyan (the complainant) for realisation of the amount Crl.R.P.702/2001 3 covered by the very same cheque. 3. It is argued by the learned counsel for the accused that on coming to know of the fact that the complainant and Biju Thomas were intending to file a suit against the accused making use of the cheque leaf, a caveat petition was filed before the Sub Court in which he had mentioned that his signed blank cheque leaf drawn on Paingottoor Service Co-operative Bank was given to Biju Thomas. But the learned counsel for the complainant would submit that the number of the cheque was not mentioned therein. It is also argued by the learned counsel for the complainant that no specific case was putforward by the accused in his statement under Section 313 Cr.P.C. nor was any witness examined to improbablise the case of the complainant. But the learned counsel for the complainant would submit that since P.W.1 could not have witnessed the money transaction, it is quite evident that he was subsequently made to say in tune with the complaint and so his evidence cannot be accepted to hold that there is evidence regarding due execution of the cheque. 4. The fact that Ext.P5 contains the signature of the accused does not tantamount to proof of execution of the cheque. Of course, the complainant relies upon Ext.P11(a) the entry relating Crl.R.P.702/2001 4 to the withdrawal of Rs.3 lakhs on 2.1.1995 to fortify the contention advanced by the complainant that Rs.3 lakhs was withdrawn by the complainant so as to lend that money to the accused. But the learned counsel for the accused would submit that the complainant had purchased 1.75 acres of land from another person evidenced by Ext.D4 and so the amount withdrawn by the complainant on 2.1.1995 could have been used for payment of advance consideration. But this submission is strongly resisted by the learned counsel for the complainant pointing out that there were so many other transactions also and as such there was no necessity for this amount to be given to the vendor of Ext.D4. Anyway, those are matters in respect of which the parties can adduce further evidence. 5. The main thrust of the argument advanced by the learned counsel for the petitioner is that the suit filed by Biju Cheriyan as O.S.No.114 of 1996 was dismissed by the learned Sub Judge after appreciating the entire evidence adduced in the matter. Since the civil court had analysed the entire evidence and since that court came to the conclusion that the transaction mentioned therein and the issuance of Ext.P5 cheque are not acceptable, that fact should have been considered by the learned Crl.R.P.702/2001 5 Sessions Judge while considering the appeal filed by the petitioner. The judgment in that suit is now pending in appeal before this court as A.S.No.191 of 2000. Therefore, the civil court verdict has not become final. It is argued by the learned counsel for the complainant relying upon the decision of the apex court in **Prem Sankar v. I.G. of Police** (2002(3) KLT 389) that since the judgment in that civil suit has not become final, that judgment is not relevant and as such based on that judgment the criminal court cannot decide the question one way or other. Anyway, the learned counsel for the accused would submit that the fact that the learned Sub Judge after a detailed discussion of the evidence has come to a finding that the case advanced by the complainant is not true, should not have been totally ignored by the learned Sessions Judge while considering the appeal against conviction. It is also pointed out that the suit for specific performance, O.S.No.93 of 1996 filed by Biju Thomas was also disposed of refusing the relief of specific performance but based on the admission made by the accused, a decree for return of money was passed. That also, according to the accused, actually probablises his case. Be that as it may, the complainant was not alive to prove the execution of the cheque and passing of the Crl.R.P.702/2001 6 consideration. There was only the evidence of the father of the complainant whose evidence cannot, according to the accused, be accepted. The original cheque (original of Ext.P5) was not produced before the court. For a proper appreciation of the evidence at the time of trial the original of Ext.P5 should also be obtained from the civil court. Considering the totality of the circumstances, I find that the conviction and sentence passed against the accused/petitioner are to be set aside and the case has to be remanded to the trial court for fresh disposal. 6. In the result, this revision is allowed in part. The conviction and sentence passed against the accused/petitioner are set aside. The case is remanded to the trial court for fresh disposal in accordance with law. Both parties are given opportunity to adduce further evidence in the matter. The parties will appear before JFCM Court-II, Muvattupuzha on 28[th] February, 2012. ## **N.K.BALAKRISHNAN, JUDGE.** srd Crl.R.P.702/2001 7 Crl.R.P.702/2001 8