K.V.Usha Devi vs Dhanasree Chits & Finance
2021 Latest Caselaw 2389 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

                       Crl.Rev.Pet.No.11 OF 2007

  AGAINST THE ORDER/JUDGMENT IN CRA 634/2004 OF DISTRICT COURT &
                     SESSIONS COURT, PALAKKAD

AGAINST THE ORDER/JUDGMENT IN ST 1732/2004 OF JUDICIAL MAGISTRATE
                   OF FIRST CLASS -I,PALAKKAD


REVISION PETITIONER/S:

                K.V.USHA DEVI
                JUDICIAL FIRST CLASS MAGISTRATE,
                COURT NO.II, PALAKKAD.

                BY ADVS.
                SRI.K.I.MAYANKUTTY MATHER
                SMT.S.LAKSHMY

RESPONDENT/S:

      1         DHANASREE CHITS & FINANCE
                R.S.NAIDU BUILDING, KUNNATHUMEDU,, PALAKKAD,
                REPRESENTED BY ITS MANAGING PARTNER.

      2         STATE OF KERALA REPRESENTED BY
                DIRECTOR OF PROSECUTIONS, HIGH COURT OF KERALA,
                ERNAKULAM.

                R1 BY ADV. SRI.T.C.SURESH MENON
                SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.Rev.Pet.No.11 OF 2007

                            2




                      O R D E R

The revision petitioner was convicted and

sentenced by the courts below under Section 138 of

the Negotiable Instruments Act.

2. Heard.

3. The prosecution allegation is that the revision

petitioner borrowed an amount of Rs.18,000/-

(Rupees Eighteen Thousand Only) from the first

respondent and towards the discharge of the said

liability, the revision petitioner executed and issued

Ext.P2 cheque in favour of the first respondent, who is

the complainant before the trial court. The first

respondent presented the said cheque for encashment. Crl.Rev.Pet.No.11 OF 2007

However, the same was dishonoured due to

insufficiency of funds in the account of the revision

petitioner. Since the revision petitioner did not pay

the cheque amount within the statutory period after

the receipt of the demand notice, the first respondent

filed the complaint before the trial court alleging

offence under Section 138 of the Negotiable

Instruments Act.

4. The contention of the revision petitioner

is that the revision petitioner had no transaction at all

with the partnership firm "Dhanasree Chits & Finance"

and that one of the two blank signed cheques issued by

the revision petitioner to "Dhanasree Credits,

Investments & Kuries (Pvt.) Ltd" as security at the time Crl.Rev.Pet.No.11 OF 2007

of collecting the bid amount in a chitty conducted by

"Dhanasree Credits, Investments & Kuries (Pvt.) Ltd",

had been misutilised by the first respondent to file the

present compliant.

5. The complainant in this case is "Dhanasree

Chits & Finance", represented by its Managing partner.

6. The evidence of PW1 would show that PW1

was one of the partners of the partnership firm,

"Dhanasree Chits & Finance". PW1 also admitted that

he is one of the Directors of "Dhanasree Credits,

Investments & Kuries (Pvt.) Ltd".

7. Ext.D4 notice issued by the Manager of

"Dhanasree Credits, Investments & Kuries ((Pvt.) Ltd"

was marked through PW1. PW1 admitted that the said Crl.Rev.Pet.No.11 OF 2007

notice was issued by "Dhanasree Credits, Investments

& Kuries (Pvt.) Ltd". Exts. D1 to D4 would show that

the revision petitioner was a subscriber of the chit

conducted by "Dhanasree Credits, Investments &

Kuries (Pvt.) Ltd".

8. The evidence of PW1 would show that

Ext.P2 cheque was issued towards the discharge of an

amount of Rs.18,000/- borrowed by the revision

petitioner from "Dhanasree Chits & Finance". During

the cross-examination of PW1, he stated that the

application filed by the revision petitioner for availing

the loan is available with the first respondent. PW1

further stated that the pro-note executed by the

revision petitioner at the time of borrowing the Crl.Rev.Pet.No.11 OF 2007

amount is also available with the first respondent.

However, none of the above said documents was

produced by the first respondent before the court to

prove the case of the first respondent.

9. It is not disputed that "Dhanasree Chits &

Finance" is a partnership firm, doing business on

finance and chits. Naturally, the first respondent must

be maintaining documents relating to the business

being conducted by the first respondent. However, no

document had been produced by the first respondent

to prove that the revision petitioner had transaction

with the first respondent as alleged in the complaint.

10. The learned Counsel for the first respondent

has submitted that "Dhanasree Chits & Finance", which Crl.Rev.Pet.No.11 OF 2007

is the complainant herein, is the sister concern of

"Dhanasree Credits, Investments & Kuries (Pvt.) Ltd".

Merely because "Dhanasree Chits & Finance" is the

sister concern of "Dhanasree Credits, Investments &

Kuries (Pvt.) Ltd", it cannot be said that "Dhanasree

Chits & Finance" need not produce any document

pertaining to the transaction involved in this case.

11. PW1 admitted that Ext.D4 notice was issued

by the Manager of "Dhanasree Credits, Investments &

Kuries ((Pvt.) Ltd". Exts. D1 to D4 would show that

the revision petitioner was a subscriber of the chit

conducted by "Dhanasree Credits, Investments &

Kuries (Pvt.) Ltd". Even though the revision petitioner

had a consistent contention that the revision petitioner Crl.Rev.Pet.No.11 OF 2007

had no transaction at all with the first respondent and

that one of the two blank signed cheques issued by the

revision petitioner in connection with a chit

transaction with "Dhanasree Credits, Investments &

Kuries (Pvt.) Ltd" had been misutilised by the first

respondent to file the present complaint, no material

had been produced by the first respondent to prove

that the revision petitioner had transaction with the

first respondent as alleged in the complaint. Therefore,

there is absolutely no material before the court to

show that the revision petitioner had any transaction

with the first respondent. In the said circumstances,

the contention of the revision petitioner appears to be

probable.

Crl.Rev.Pet.No.11 OF 2007

12. Having gone through the evidence on

record, it appears that the defence set up by the

revision petitioner is probable. It is settled law that it

is sufficient if the accused is able to prove his case by

the yardstick of preponderance of probabilities and

possibilities from the evidence on record. In this case,

the evidence on record would clearly show that the

revision petition could establish the defence set up by

the revision petitioner by the yardstick of

preponderance of probabilities and possibilities.

Therefore, the conviction and sentence passed by the

courts below cannot be sustained and consequently, I

set aside the same.

In the result, this Criminal Revision Petition Crl.Rev.Pet.No.11 OF 2007

stands allowed, setting aside the conviction and

sentence passed by the courts below under Section

138 of the Negotiable Instruments Act and the revision

petitioner stands acquitted. The bail bond of the

revision petitioner stands discharged.

Sd/-B.SUDHEENDRA KUMAR JUDGE RK/21.01.2021

/true copy/