V. T. Kuruvila v. Mafatlal Finance Company Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939** **Crl.Rev.Pet.No. 876 of 2002 ( ) --------------------------------** **CRL.A 457/2001 OF III ADDITIONAL SESSIONS COURT, ERNAKULAM. CC 601/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI.** **........** ## **REVISION PETITIONERS/APPELLANT/ACCUSED:** **----------------------------------------** **V.T.KURUVILA, S/O.THOMAS, VETTUCHIRAYIL HOUSE, KUTTAMASSERRY, THOTTUMUGHAM P.O., ALUVA.** **BY ADVS.SRI.PEEYUS A.KOTTAM SRI.ASHIK K.MOHAMMED ALI** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------** **1. M/S.MAFATLAL FINANCE COMPANY LTD., 39/5751, 1ST FLOOR, CHIRAMEL CHAMBERS, KURISUPALLY ROAD, COCHIN-15.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-08-2017 ALONG WITH CRRP.878/2002, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## ALEXANDER THOMAS, J. -------------------------- Crl.R.P. Nos. 876 & 878 of 2002 ------------------------------Dated this the 3[rd] day of August, 2017 ## ORDER The petitioner in Crl.R.P.No.876 of 2002 is accused for offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.601 of 1998 on the file of the Judicial First Class Magistrate Court-I, Kochi, instituted on the basis of a complaint filed by the first respondent herein. The trial court as per the impugned judgment rendered on 30.05.2001 has convicted the petitioner for the above said offence and has convicted him to undergo simple imprisonment for six months to the above said offence. No orders have been passed by the trial court for imposing any fine or compensation. The matter was taken up in appeal and the appellate court (III Additional Sessions Court, Ernakulam), as per impugned judgment rendered on 20.04.2002 in Crl.Appeal No.457 of 2001, has dismissed the appeal and thereby confirmed the conviction and sentence in that case. Crl.R.P. Nos. 876 & 878 of 2002 2 2. The petitioner in Crl.R.P.No.878 of 2002 is accused for the same offence in C.C.No.600 of 1998 on the file of the Judicial First Class Magistrate Court-I, Kochi instituted on the basis of a complaint filed by the first respondent herein. The trial court as per the impugned judgment rendered on 30.05.2001 has convicted the petitioner for the above said offence and has sentenced him to undergo simple imprisonment for six months. In this case also the trial court does not impose any fine amount or compensation. 3. The appellate court as per the impugned judgment rendered on 20.04.2002 in Crl.appeal No.455 of 2001, has dismissed the appeal and has thereby confirmed the impugned conviction and sentence in that case as well. 4. The parties in both the complaints are the same. The dishonored cheques in question have been issued by the accused in respect of liabilities arising out of a higher purchase agreement arrived at between the accused and the respondent complainant company. There are three dishonored cheques in C.C.No.601/98 (which was led to Crl.R.P. Nos. 876 & 878 of 2002 3 Crl.R.P.No.876/02) and the dishonored cheques are dated 20.06.1997, 20.07.1997 and 20.08.1997 for Rs.9,385/each. There are two dishonored cheques in respect of C.C.No.600/98 and those two cheques are dated 20.09.1997 and 20.10.1997 for Rs.9,385/- each. The trial court had ordered joined trial in both the complaints and common oral and documentary evidence were adduced in C.C.No.600/98. Though, joined trial was ordered, it appears that judgments have been rendered separately but on the same day. The appeals have been disposed of by the appellate sessions court concerned through a common judgment. 5. The revision petitions were filed on 16.07.2002. Both the revision petitions have been admitted by this Court on 17.07.2002, on which day this Court has also passed separate orders in these revisions directing the suspension of the execution of the impugned sentence of this case on the petitioner furnishing bond for Rs.10,000/- with two solvent sureties each for the like sum to the satisfaction of the court below. Notice issued to R1/complainant was Crl.R.P. Nos. 876 & 878 of 2002 4 returned unserved. Later a counsel had entered appearance for R1 company and it appears that he has subsequently relinquished his vakalath and R1 has not made any alternative arrangements for defending his case in these revisions. 6. Heard Sri.Peeyus A.Kottam, learned counsel appearing for the revision petitioner and Sri.Saigi Jacob Palatty, learned Public Prosecutor for the respondent/State. 7. One of the contentions raised by the learned counsel appearing for the revision petitioner is that the matter in this issue is fully covered in favour of the petitioner by virtue of the decision rendered by this Court in Sudha Beevi v. State of Kerala [2004 (2) KLT 746]. In the said decision this Court has held that in a case of higher purchase agreement where, presented and dishonored cheques in question are in respect of liabilities after the seizure of the vehicle by the financier, then those cheques would be without any consideration made under Section 43 of NI Act. In the said case the higher purchase agreement was entered into on 28.06.1997 and dishonored cheque in Crl.R.P. Nos. 876 & 878 of 2002 5 question was dated 05.09.1999. It has come out in evidence that the vehicle was repossessed by the complainant financier in May, 1999. Therefore, going by the terms and conditions of the higher purchase agreement, the said agreement had stood determined ipso facto and the complainant owner had admittedly repossessed the vehicle, It was also found that the complainant owner therein had repossessed the vehicle in May 1999. In the said circumstances, this Court held that the cheques issued for September 1999 will be without any consideration in as much as the vehicle was repossessed by the complainant financier much prior to that. It was also observed therein that a remedy has been made available to the owner in terms of clause 9 of the higher purchase agreement in that case, and it was also found that the complainant/owner had taken recourse to that remedy as provided under the said clause. In the instant case Ext.P12 is the higher purchase agreement. On a perusal of the same would show that it was an agreement entered into on 12.11.1996 and the higher purchase agreement for financing the vehicle was for Crl.R.P. Nos. 876 & 878 of 2002 6 36 months and the monthly payment was due on 20[th] of every month and the first payment was due on 20.11.1996 and the last payment was due on 20.10.1999. The five cheques in question involved in this two cases are dated 20.06.1997, 20.07.1997, 20.08.1997, 20.09.1997 and 20.10.1997 respectively for Rs.9,385/- each. PW1 has stated that vehicle was repossessed and it was sold. Further it is stated that for recovering the amount, an arbitration suit was filed. Though, it is admitted by PW1 that the vehicle has been repossessed, no evidence has been let in by either of the parties as to when exactly the vehicle was repossessed. In view of the presumption under Section 139 of NI Act, it was for the accused to let in evidence as to when exactly the vehicle was repossessed. The liabilities in this five cheques appeared to be from June 1997 up to October 1997. If there is evidence to show that as a matter of fact, the vehicle was repossessed prior to June 1997, then certainly the petitioner/accused is entitled to succeed on his claim that the cheque is without any consideration. In the view that is proposed to be taken in these revisions 7 Crl.R.P. Nos. 876 & 878 of 2002 petitions, this Court,is not pronouncing any final opinion in this matter and the issue in that regard is left open to be decided by the appellate sessions court in the remit that is proposed to be ordered in these revision petitions. 8. The second contention raised by the petitioner is that the complaint filed at the instance of PW1 is not maintainable for reasons more than one. The first argument in that regard is that the complainant company has not executed any power of attorney in favour of PW1 and that PW1 is only relying on Ext.P1 (copy of resolution) and Ext.P14 (certified copy of Ext.P1 resolution), which are not legally acceptable. It is further argued that PW1 admitted in his evidence that he is not having personal knowledge about the details of the issuance of the impugned cheques. On this ground the learned counsel for the revision petitioner would argue that the complaint itself was not maintainable and further that since PW1 is not having direct knowledge, he is not competent to adduce evidence on behalf of the complainant since an official of the company, who had direct knowledge of the transactions Crl.R.P. Nos. 876 & 878 of 2002 8 has not given any evidence before the court. It is thus argued that there is no legally acceptable evidence adduced in this case to prove the case of the complainant, in as much as the sole witness (PW-1) is not competent to give evidence on behalf of the complainant. 9. In the light of these aspects, this court is of the view that the matter requires a fresh look at the hands of the appellate court and the matter is liable to be remitted accordingly. In this view of the matter, it is ordered the impugned common judgment dated 20.05.2002 of the court of III Additional Sessions court, Ernakulam in Crl.Appeal No.455 and 457 of 2001 will stand set aside. The said criminal appeals will stand restored to the file of the appellate court. The appellate court will consider all matters raised in the appeal, afresh after granting reasonable opportunity of being heard to both sides. The learned counsel for the appellant will appear before the appellate court at 11 a.m. on 19.08.2017. In case there is no appearance, the respondent complainant company then notice may be issued to that party and thereafter the Crl.R.P. Nos. 876 & 878 of 2002 9 appellate court will proceed to dispose of the appeal afresh and efforts may be taken to give priority for the hearing and disposal of these appeals and attempts may be made to final disposal of these appeals within 3 to 4 months form the date of receipt of a certified copy of this order. All contentions on both sides are left open to be decided by the appellate court. 10. Registry will forward the LCR along with copy of the judgment of the appellate court. With these observations and directions these Crl.Rev. Petitions will stand finally disposed of. sd/ALEXANDER THOMAS, JUDGE AMV/03/08/2017 /TRUE COPY/ P.A.TO JUDGE