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2025 DIGILAW 1389 (KER)

K. Gopinath Menon v. M. J. Luize

2025-05-23

KAUSER EDAPPAGATH

body2025
ORDER : Kauser Edappagath, J. These two Criminal Revision Petitions are connected and hence they are disposed of by a common order. 2. The mother of the revision petitioner preferred two private complaints against the respondents 1 and 2 before the Judicial First Class Magistrate Court-III (Mobile Court), Ernakulam (for short, ‘the trial court’) as C.C. Nos.301/2007 and 302/2007 filed under Section 142 of the Negotiable Instruments Act (for short ‘the N.I. Act’). The offence alleged was under Section 138 of the N.I. Act. 3. The case of the complainant in short is as follows:- The property that belonged to the complainant, her son and one Mr. P. S. Aravindakshan were sold to the accused as per Exts.D1 to D5 sale deed for a total consideration of Rs.40,76,260/-. Even though in the sale deed it was recited that the consideration was passed over, in fact it was not done, instead three cheques were issued by the accused to the complainant towards the sale consideration. All the three cheques when presented were dishonoured for the reason ‘payment stopped by the drawer’. Out of the three cheques, two cheques (Exts.P1 and P2) were the subject matter of the above two Calendar Cases. 4. Both the cases were tried by the trial court jointly. PWs 1 to 4 were examined on the side of the complainant and Exts.P1 to P26 were marked. Exts.D1 to D6 were marked on the side of the defence. After the trial, the trial court found the accused guilty under Section 138 of the N.I. Act and they were convicted for the said offence. In C.C. No.301/2007, they were sentenced to undergo simple imprisonment for six months and to pay fine of Rs.1,45,000/- each, in default to suffer simple imprisonment for six months. In C.C. No.302/2007, they were sentenced to undergo simple imprisonment for one year and to pay fine of Rs.3,35,000/- each, in default to suffer simple imprisonment for six months. The accused preferred appeal before the Additional District and Sessions Court – VIII, Ernakulam (for short, ‘the appellate court’) as Criminal Appeal Nos.390/2011 and 391/2011. The appellate court found that the trial court failed to give sufÏcient opportunity to the accused to substantiate their defence plea. Hence, the conviction and sentence were set aside. The accused preferred appeal before the Additional District and Sessions Court – VIII, Ernakulam (for short, ‘the appellate court’) as Criminal Appeal Nos.390/2011 and 391/2011. The appellate court found that the trial court failed to give sufÏcient opportunity to the accused to substantiate their defence plea. Hence, the conviction and sentence were set aside. The matter was remanded to the trial court granting opportunity to the accused as well as the complainant to adduce further evidence as per the common judgment. 5. During the pendency of the appeal, the original complainant died and her son, was impleaded as the additional 3 rd respondent. The additional 3 rd respondent preferred these revision petitions challenging the common judgment passed by the appellate court. 6. I have heard Sri. C. Dilip, the learned counsel for the revision petitioner and Sri. K. Paul Kuriakose, the learned counsel for the respondents 1 and 2. 7. It is not in dispute that the property that belonged to the complainant, her son and Mr. P. S. Aravindakshan were sold by them to the accused for a total consideration of Rs.40,76,260/- as per Exts.D1 to D5 sale deeds. There is a recital in Exts.D1 to D5 that the entire consideration has been paid. However, the complainant took a stand that though there was such a recital in the sale deeds, in fact, the consideration was not paid. It is her case that Exts.P1 and P2 cheques among the three cheques issued by the accused were towards the consideration of the sale of the property covered by Exts.D1 to D5. The accused in the statement filed by them under Section 313 of Cr.P.C. took up a contention that they paid the sale consideration in advance to M/s. Kolatheril Construction Company of which the son of the complainant (revision petitioner) and Mr.P. S. Aravindakshan were partners. It is their definite case that the entire consideration was paid before the registration of Exts.D1 to D5 for completing the construction of the building situated in the property. The sale deed was registered after the entire consideration was paid in the aforesaid manner. 8. It is seen from the records that the accused filed C.M.P. Nos.41/2010 and 42/2010 at the trial court to summon witnesses and to call for records to prove their defence case that they paid the sale consideration in advance to M/s. Kolatheril Construction Company. The sale deed was registered after the entire consideration was paid in the aforesaid manner. 8. It is seen from the records that the accused filed C.M.P. Nos.41/2010 and 42/2010 at the trial court to summon witnesses and to call for records to prove their defence case that they paid the sale consideration in advance to M/s. Kolatheril Construction Company. However, those applications were dismissed by the trial court. The appellate court found that since the accused have taken up a definite plea that they have paid the sale consideration in advance to M/s. Kolatheril Construction Company, the trial court ought to have given an opportunity to the accused to substantiate their defence plea. Since the accused took a definite plea that the entire amount covered by the cheques in question were already paid, I am also of the view that the trial court was totally erred in not affording an opportunity to the accused to adduce evidence to substantiate the same. Hence, I see no reason to interfere with the finding in the impugned judgment of the appellate court that the accused should be given an opportunity to adduce evidence to substantiate their defence plea of discharge. 9. The learned counsel for the revision petitioner submitted that the scope of remand, in fact, is limited to give an opportunity to the accused to adduce evidence. It is true that the main purpose of remand was to give an opportunity to the accused to adduce evidence to prove their plea of discharge. However, in the impugned judgment, it was also observed that if necessary, the complainant also should be given an opportunity to adduce evidence. The learned counsel for the revision petitioner further submitted that the case is of the year 2007, about eighteen years have elapsed and in such circumstances instead of remanding the matter in toto invoking Section 386(b)(i) of Cr.P.C., the appellate court ought to have exercised the power under Section 391 of Cr.P.C.. I find some force in the said argument. The learned counsel for the revision petitioner further submitted that the case is of the year 2007, about eighteen years have elapsed and in such circumstances instead of remanding the matter in toto invoking Section 386(b)(i) of Cr.P.C., the appellate court ought to have exercised the power under Section 391 of Cr.P.C.. I find some force in the said argument. Since the scope of remand is limited as mentioned above and also considering the fact that the case is of the year 2007, I am of the view that the trial court can be directed to record additional evidence as directed in the impugned judgment and certify such evidence to the appellate court and thereafter, the appellate court itself can dispose of the appeal on merits. 10. In the light of the above findings, the impugned judgment is modified as follows: i. Both the complainant and the accused shall appear before the trial court on 25.06.2025. ii. Thereafter, the trial court shall fix a date for adducing additional evidence. iii. The accused shall file a fresh witness list. The trial court shall give an opportunity to the accused to adduce additional evidence either by examining the witness or by producing documents. If requested, the trial court shall also permit the accused himself to give evidence. iv. If the complainant also desires to adduce any additional evidence, such an opportunity shall be given to the complainant as well. v. The entire evidence recorded by the trial court shall be certified and forwarded by it to the appellate court. Thereafter, the appellate court shall dispose of the appeals, in accordance with law, after hearing both sides within a period of three months. These Criminal Revision Petitions are disposed of as above.