Nazar v. Rajesh 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. 1148 of 2014** **AGAINST THE ORDER/JUDGMENT IN CRA 234/2011 of** **III ADDL. SESSIONS COURT, THRISSUR DATED 08-05-2014** **AGAINST THE ORDER/JUDGMENT IN CC 835/2009 of J.M.F.C., KODUNGALLUR DATED 04-03-2011** ## **REVISION PETITIONER/S:** **NAZAR, AGED 35 YEARS, S/O. MUHAMMEDALI, KALATHINGAPARAMBIL HOUSE, CHAMAKKALA DESOM, CHENTHAPPINNI VILLAGE, THRISSUR.** **BY ADV. SRI.K.I.SAGEER** ## **RESPONDENT/S:** **1 RAJESH, AGED 34 YEARS S/O. GOPALAN, THEKKINIYATH HOUSE, VELAPPAD BEACH, VALAPPAD VILLAGE, THRISSUR DISTRICT-680121.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN-682031. R1 BY ADV. SRI.BINU PAUL** ## **R2 BY PUBLIC PROSECUTOR SHRI.E C BINEESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** STK ## **Crl.Rev.Pet.No. 1148 of 2014** -2- ## **ORDER** The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act (in short, 'the N.I.Act'). 2. Heard. 3. The learned counsel for the revision petitioner has submitted that the complainant did not have a consistent case with regard to the execution of Ext.P1 cheque by the revision petitioner and in the said circumstances,the conviction and sentence passed by the courts below cannot be ## **Crl.Rev.Pet.No. 1148 of 2014** sustained. The learned counsel for the revision petitioner has further submitted that even though the power of attorney was examined before the court to prove the complaint, there is no assertion in the complaint with regard to the knowledge of the power of attorney in the transaction involved in the case and in the said circumstance also the conviction and sentence passed by the courts below cannot be sustained. The learned counsel relied on the decision of the Apex Court in Narayanan and Another v. State of Maharashtra and Others [2013(4) KLT 21(S.C.)] to buttress ## **Crl.Rev.Pet.No. 1148 of 2014** -4- his submission. 4. The learned counsel for the first respondent on the other hand relied on the decision of the Apex Court in Kishan Rao v. Shankargouda [2018(3) KHC 684] and argued that since the signature of the accused had been admitted, the presumption under Section 139 of the N.I.Act is available in favour of the complainant and in the said circumstances, the conviction and sentence passed by the courts below are perfectly justified. 5. In the complaint, it was stated that towards the discharge of the amount due to ## **Crl.Rev.Pet.No. 1148 of 2014** -5- the complainant, the accused issued Ext.P1 cheque in favour of the complainant. The nature of the transaction was not mentioned in the complaint. In Ext.P3 demand notice also, the complainant did not mention about the nature of the transaction which resulted in the issuance of Ext.P1 cheque. 6. The power of attorney of the complainant was examined as PW1 to prove the complaint. PW1 is the husband of the elder sister of the wife of the complainant. PW1 advanced an amount of Rs.7,00,000/- to the accused at Dubai during July 2007 as requested by the complainant and when the ## **Crl.Rev.Pet.No. 1148 of 2014** -6- said amount was demanded back, the accused issued Ext.P1 cheque on 15.07.2008 in favour of the complainant. It was neither stated in the complaint nor stated in the evidence of PW1 as to when the cheque was issued by the accused. It was also not stated in the complaint as to the place at which Ext.P1 cheque was issued. 7. The case advanced by PW1 through his affidavit filed in lieu of his examination-in-chief was not reflected in the complaint or in Ext.P3 lawyer notice. It was for the first time when PW1 filed proof affidavit that PW1 stated that the ## **Crl.Rev.Pet.No. 1148 of 2014** -7- money was given to the accused by PW1 and not by the complainant. To whom the cheque was handed over was also not stated anywhere in the evidence of PW1 even though it was stated that the cheque was drawn in favour of the complainant. The Apex Court in Narayanan (supra) held that the power of attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint, provided the power of attorney must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the transaction. The Apex Court ## **Crl.Rev.Pet.No. 1148 of 2014** -8- further held in Narayanan (supra)that it is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction, explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transaction cannot be examined as a witness in the case. 8. In this case, there is absolutely no averment in the complaint that PW1 had witnessed the transaction. Even otherwise, PW1 did not have a contention that he witnessed the transaction. On the other hand, the evidence of PW1 is that he had ## **Crl.Rev.Pet.No. 1148 of 2014** -9- advanced the amount to the accused as requested by the complainant, which was a new story set up by PW1 during his examination before the court. In view of the above reasons, I am of the view that the evidence of PW1 is not sufficient to prove the execution of Ext.P1 cheque by the accused. 9. In Kishan Rao (supra), the accused had a contention that the cheque was stolen by the complainant. The said defence was not accepted by the court. In that case, the complainant could prove that the accused had signed the cheque in question. It could ## **Crl.Rev.Pet.No. 1148 of 2014** -10- be further proved that the cheque was handed over to the complainant by the accused to present the cheque before the bank. In the said circumstances, the Apex Court held that when the cheque contained the signature of the accused and it was given to the complainant to present in the bank, the presumption under Section 139 of the N.I.Act is attracted. The facts of the present case are different from the facts in Kishan Rao (supra). In the present case, there is absolutely no convincing evidence as to when the cheque was handed over by the accused to the complainant. There is also no evidence ## **Crl.Rev.Pet.No. 1148 of 2014** that the cheque was handed over by the accused to the complainant. In view of the above reasons, it has to be held that the ratio in Kishan Rao (supra) is not applicable to the facts of the case on hand. 10. It is also to be noted that Ext.P3 demand notice issued to the revision petitioner was returned with the endorsement 'left India'. The complainant does not have a contention that the accused was in India at the relevant time. It is true that it was contended that the accused evaded the service of notice. However, it is clearly stated in Ext.P5 produced by the complainant ## **Crl.Rev.Pet.No. 1148 of 2014** -12- that the accused left India. The evidence of PW1 would also show that the accused was working abroad. In view of the above facts, it has to be held that the demand notice was not served on the accused. For the said reason also, the offence under Section 138 of the N.I.Act cannot be attracted. 11. Having gone through the relevant inputs, I am of the view that the appreciation of evidence by the courts below was incorrect and in the said circumstances, the finding by the courts below that the revision petitioner committed the offence under Section 138 of the N.I.Act cannot be ## **Crl.Rev.Pet.No. 1148 of 2014** sustained and consequently, the conviction and sentence passed by the courts below cannot be sustained. In the result, this revision petition 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 **.** Sd/- ## **B. SUDHEENDRA KUMAR,** **JUDGE** STK