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2010 Supreme(Ker) 193
High Court of Kerala
THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN
A.M. Perumal
Versus
M/S. Star Tours & Travels (India) Ltd & Another
Crl. Rev. Pet. No. 1667 of 2007
Decided on : 15-03-2010
For the Petitioner:K. Gopalakrishna Kurup, Advocate. For the Respondent:C.A. Chacko, Advocate.
The main legal point established in the judgment is the requirement of proving notice of dishonour, plea of discharge, and admissibility of electronic records under Sec. 65B of the Indian Evidence Act.
Headnote:
Negotiable Instruments Act - Dishonour of Cheque - Sec. 138 - Sec. 357(3) of the Crl.P.C. - Sec. 65B of the Indian Evidence Act
Fact of the Case:
The accused was prosecuted for dishonour of a cheque issued in discharge of a liability. The trial court convicted and sentenced the accused, which was confirmed with reduced sentence by the Sessions Judge. The accused filed a revision petition against the conviction and sentence.
Finding of the Court:
The court found that the notice of dishonour of cheque was duly communicated to the accused, and there was constructive notice. The court also found that the accused failed to prove the plea of discharge, and the evidence presented by the prosecution was not admissible under Sec. 65B of the Indian Evidence Act. Consequently, the court acquitted the accused.
Issues: The issues included the communication of notice, plea of discharge, and admissibility of electronic records under Sec. 65B of the Indian Evidence Act.
Ratio Decidendi: The court held that the notice of dishonour was duly communicated, and the accused failed to prove the plea of discharge. Additionally, the court found that the evidence presented by the prosecution was not admissible under Sec. 65B of the Indian Evidence Act.
Final Decision: The revision petition succeeded, and the accused was acquitted. The bail bond was cancelled, and the accused was set at liberty.
1. The revision petitioner is the accused in CC.No.989/2001 on the file of the Judicial Magistrate of the First Class-II, Kochi. The first respondent herein prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act with a plea that there was business transaction between the revision petitioner and the first respondent following which there was outstanding liability and in discharge of a part of the liability Ext.P2 cheque dated 18.12.2000 for Rs.5,60,000/-drawn on Vysya Bank, Ravipuram Branch was issued and that when Ext.P2 was sent for collection it was returned bounced for insufficient funds and that though a notice demanding discharge of liability was issued to the revision petitioner, it was returned and that the liability was not discharged.
2. The learned Magistrate after taking cognizance issued process to the revision petitioner, responding to which he entered appearance. When the particulars of the offence were read over and explained, the revision petitioner pleaded not guilty. Hence, he was sent for trial. On the side of the first respondent, the Managing Director of the first respondent was examined as Pw1. Exts.P1 to P7 were marked. During the course of cross examination Exts.D1 to D7 were marked. After closing the evidence for the prosecution the revision petitioner was questioned under Sec.313 of the Criminal Procedure Code. It appears that on behalf of the revision petitioner, the counsel had given statement. The plea advanced was that the revision petitioner had left the station on 31.8.2000 with due notice to the first respondent and despite the knowledge of change of address, notice was sent in the old address and that the revision petitioner was neither aware of any notice nor had received any notice and that Ext.P2 was issued as security and that a sum of Rs.5,60,000/-due to the first respondent was discharged in instalments and that the documents in proof of discharge were produced and that misusing a blank cheque given as security, the prosecution was launched. Thereafter, the revision petitioner and another were examined as Dws.1 and 2. Through Dw1, Exts.D8 to D12 were marked. During the course of the cross examination of Dw1, a computer print of the accounts said to have been containing the business transaction with the revision petitioner was tentatively marked as Ext.D13. On appraisal of the evidence, the trial court arrived a conclusion that Ext.D13 is admissible in evidence and that Ext.P2 was issued in discharge of liability and there is constructive notice and that the first respondent had succeeded to establish the offence alleged. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months. He was also directed to pay rupees six lakhs as compensation under Sec.357(3) of the Crl.P.C. to the first respondent.
3. Feeling aggrieved, he took up the matter in appeal before the Sessions Judge, Ernakulam. The Addl.Sessions Judge (Adhoc-II), Ernakulam to whom the appeal was made over, by judgment dated 15.1.2007 confirmed the conviction. But the sentence was reduced to simple imprisonment for one month. The order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed.
4. No statutory notice was issued is one of the defence advanced by the revision petitioner. Ext.P6 would show that the notice was addressed to the revision petitioner at his residence at Kadavanthara, Kochi. The endorsement thereon would show that through the postman had tried on various occasions between 11.6.2000 and 22.6.2000, the house was found locked. Hence, he returned the same with the endorsement 'addressee continuous locked'. According to the revision petitioner, who was examined as DW1, he was transferred from the station on 31.8.2000 and thereafter he vacated the house at Kochi and the matter was informed t
