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2009 DIGILAW 487 (KER)

Kumari A M v. Vinodhan

2009-06-15

THOMAS P.JOSEPH

body2009
ORDER 1. This revision is in challenge of judgment of learned I Additional Sessions Judge, Thrissur in Crl.Appeal No.330 of 2006 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act). 2. Case of respondent No.1 is that petitioner borrowed Rs.1,50,000/- from him to meet educational expenses of her son and for the discharge of that liability issued Ext.P1, cheque dated 30.4.2001. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation, respondent No.1 issued statutory notice to the petitioner. Issue and service of statutory notice on petitioner are proved by Exts.P3 and P4. Ext.P5 is a letter said to be issued by the husband of petitioner to respondent No.1. Petitioner denied that she had any transaction with respondent No.1 and claimed that a few signed blank cheques of herself and her husband were given to one Raghavan on a promise that the latter will take her husband as a partner in the web site business. Raghavan did not comply with the promise. Later she learnt that Raghavan borrowed money from several persons making use of those signed cheques. Thereon in the year, 2001 petitioner preferred a complaint to the police against Raghavan. That case is pending against Raghavan as C.C.No.105 of 2001. Since Raghavan absconded case was included in the long pending register. Her further case is that respondent No.1 is a friend of Raghavan and one of the signed blank cheque leaves has been misused. Petitioner proved Exts.D1 to D5. Learned magistrate was not impressed by the contention raised by petitioner, found her guilty, convicted and sentenced to undergo simple imprisonment till rising of court and pay Rs.1,50,000/- as compensation to respondent No.1. Petitioner took up the matter in appeal. When the matter was pending in the appellate court, petitioner filed an affidavit requesting that hearing of appeal be adjourned towards the end of January, 2008 to facilitate her paying the amount covered by cheque. She stated in the affidavit that she is not capable to raise money. She had applied for a loan from provident fund but the staff in the office of Accountant General are on strike and hence she is unable to get it. When the appeal was taken up for hearing, both sides argued in support of their contention. She stated in the affidavit that she is not capable to raise money. She had applied for a loan from provident fund but the staff in the office of Accountant General are on strike and hence she is unable to get it. When the appeal was taken up for hearing, both sides argued in support of their contention. Learned I Additional Sessions Judge after referring to the contentions raised, observed in paragraph ten (10) of the judgment that since liability under the cheque is admitted by petitioner in the affidavit dated 27.11.2007 it is not necessary to go into the other contentions raised by both sides and accordingly, appeal was dismissed. That judgment is under challenge. 3. Learned counsel for petitioner would contend that judgment of appellate court is illegal in that, points raised for consideration in appeal have not been dealt with. Instead, appellate court has proceeded on the assumption that there is a plea of guilty by petitioner. It is also submitted by counsel that there is no admission of guilt in the affidavit dated 27.11.2007. Counsel for respondent No.1 contended that appellate court was competent to look into the affidavit of the petitioner which admitted liability under the cheque which is the very substratum of the complaint and hence petitioner is no justified in contending that her affidavit should not have been looked into. 4. I have gone through the affidavit dated 27.11.2007 filed by petitioner in the appellate court. That affidavit stated that petitioner is prepared to pay the amount covered by cheque and for the reasons stated therein and already indicated above, requested that hearing of the appeal be postponed till the end of January, 2008. I am unable to understand that affidavit was amounting to a plea of guilt as understood under law. What is stated in the affidavit is only that petitioner is prepared to pay the amount covered by cheque. Non-payment of amount by itself would not constitute an offence under Section 138 of the Act. Necessary requirements to make out an offence as provided in the said section, one of which being that petitioner issued the cheque in favour of respondent No.1 for a legally enforceable debt/liability are to be established. Non-payment of amount by itself would not constitute an offence under Section 138 of the Act. Necessary requirements to make out an offence as provided in the said section, one of which being that petitioner issued the cheque in favour of respondent No.1 for a legally enforceable debt/liability are to be established. It is for respondent No.1 to prove that those necessary ingredients to constitute offence under Section 138 of the Act are proved and, if he has adduced evidence in that line, it is for the appellate court to consider whether verdict of guilt entered by learned magistrate is justified in law and on facts. Going by Sections 353 and 354 of the Code of Criminal Procedure, judgment of appellate court must state the points for consideration and the decision arrived at on such points. Even if it is assumed that the appeal which is already admitted is stated to be not pressed, as it is a matter involving conviction and sentence affecting liberty of the person concerned it is the duty of the appellate court to consider whether on the evidence on record conviction of that person is sustainable and if not, notwithstanding that the appellant does not want to pursue the appeal, the appeal has to be allowed. In this case appellate court for the reason of petitioner offering to pay the amount covered by cheque if given time, has not gone into the records before it and satisfied itself whether the conviction and sentence imposed on petitioner are legally sustainable. To that extent judgment of the appellate court suffered from illegality. 5. Learned counsel for respondent No.1 argued that assuming that appellate court has illegally or irregularly exercised the jurisdiction, this Court in revision can consider the case on its merits and a remand is not called for. This is not a case where the appellate court has exercised its jurisdiction illegally or irregularly. Instead it is a case where appellate court has not at all exercised the power conferred on it as an appellate court. Therefore I do not consider it just, legal or proper for this Court to consider whether there was merit in the appeal preferred by the petitioner. That being the function of the appellate court has to be done by that court. 6. Therefore I do not consider it just, legal or proper for this Court to consider whether there was merit in the appeal preferred by the petitioner. That being the function of the appellate court has to be done by that court. 6. In the light of what I have stated above, judgment of the appellate court which is under challenge in this revision is not sustainable and is liable to be set aside. 7. Learned counsel for petitioner submitted that this matter was pending in the appellate court from the year 2006 onwards and that cheque itself is dated 30.4.2001. Learned counsel requested that direction be issued to the appellate court for a time bound disposal of appeal. In the facts and circumstances of the case, I am inclined to accept that request. Resultantly this revision succeeds. Judgment of learned I Additional Sessions Judge, Thrissur in Crl.Appeal No.330 of 2006 is set aside and the appeal is remitted to that court for fresh disposal on merit. Learned I Additional Sessions Judge shall dispose of the appeal as expeditiously as possible and at any rate within two months from the date of receipt of records in that court. Registry is directed to send the records to the appellate court forthwith. Parties shall appear in the appellate court on 15.7.2009. Crl.M.A.No.4449 of 2009 will stand dismissed.