The court established that novation occurred, cancelling the original contract, resulting in no enforceable debt at the time of cheque issuance under Section 138 of the NI Act.

O R D E R

This Revision Petition is preferred impugning the judgment of the Additional Sessions Court (Adhoc-I), Ernakulam in Crl.Appeal No.194/2012.

2. This is the second round of litigation between the parties. The offence alleged against the accused was under Section 138 of the Negotiable Instruments Act [hereinafter referred to as, ‘the NI Act’].

3. In the first round of litigation, the accused preferred Criminal Revision Petition before this Court as Crl.R.P.No.549/2005. As per the order dated 30.08.2006 in Crl.R.P.No.549/2005, this Court has set aside the concurrent verdict of guilty and conviction and directed the learned Magistrate to dispose the matter afresh. The operative portion of the said order reads thus:

‘5. Having considered all the relevant circumstances, I am of the opinion that the interests of justice will be served ideally by permitting the parties to adduce expert evidence available about the genuineness of Ext.D1. Both counsel fairly accept that such course can be followed.

6. In the result, a) This revision petition is allowed in part;

b) The impugned concurrent verdict of guilty and conviction are set aside;

c) The learned Magistrate is directed to dispose of the matter afresh;

d) The undertaking of the petitioner that he

shall take the necessary steps at his expense to get Ext.D4 examined by an expert is made note of.

7. The parties shall appear before the learned Magistrate on or before 15.09.2006 to continue the proceedings. The sentence shall not be executed till that date. The Registry shall forthwith forward records to that court. The learned Magistrate must make every endeavour to dispose of the case afresh after giving the parties further opportunity to adduce all further evidence, whic both sides may want to adduce.’

4. The main contention of the accused/revision petitioner herein is that, there was no liability at the time when the disputed cheque was executed. Admittedly, the complainant claims an amount of Rs.4,25,000/- on the basis of Ext.P1 agreement. It is the case of the revision petitioner that Ext.P1 agreement was later rescinded and altered by the mutual consent of the parties i.e., the complainant and the accused and that is evident from Ext.D4 letter allegedly written by the complainant to the accused.

5. As per the direction of this Court and at the expense of the accused, Ext.D4 letter allegedly written by the complainant was sent for the opinion of the hand writing expert.

6. Ext.D5 is the report of the handwriting expert wherein he opined that the handwriting in Ext.D4 letter is that of the complainant himself.

7. The trial court as per judgment dated 17.02.2012 has again convicted and sentenced the revision petitioner/accused. The learned Magistrate sentenced the accused/revision petitioner to undergo simple imprisonment for three months and to pay compensation of Rs.5 lakh under Section 357(3) Cr.P.C and in default, to undergo simple imprisonment for three months. Impugning the said judgment of the trial court, the revision petitioner approached the Sessions Court, Ernakulam. The Additional Sessions Judge, Adhoc-I, Ernakulam as per judgment dated 30.10.2012 in Crl.Appeal No.194/2012 has confirmed the conviction passed by the trial court, modified and reduced the sentence of imprisonment till the rising of the Court and the compensation awarded by the learned Magistrate was confirmed.

8. Impugning the judgment of the Additional Sessions Court, Adhoc-I, Ernakulam in Crl.A.No.194/2012, the revision petitioner approached this Court.

9. Heard Sri.Siraj Karoly, learned counsel appearing for the revision petitioner and Adv.Majnu Komath, learned counsel appearing for the 1 st respondent.

10. Both the trial court and the appellate court have failed to consider that Ext.D4 letter allegedly written by the complainant would amount to novation of Ext.P1 agreement and Ext.P1 agreement is therefore no longer enforceable and consequently, Ext.P5 cheque does