M GANESH KUMAR Vs. SREEDHARA SHETTY

JUDGEMENT

(1.) The revision petitioner is the accused in C.C. No. 483 of 2000 on the file of the Chief Judicial Magistrate, Kasaragod. He was found guilty, convicted and sentenced to undergo simple imprisonment for six months and to pay Rs. 3,00,000/-as compensation to the first respondent for offence under S. 138 of the Negotiable Instruments Act. Though he preferred Crl. A. No. 345 of 2004 he was not successful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was preferred.

(2.) I have heard Adv. Sri. Aneesh Joseph on behalf of the revision petitioner and Adv. Sri. Johny Thomas on behalf of the first respondent. I was taken through the evidence on record and the impugned judgment. The revision petitioner had advanced a defence that Ext. P1 cheque was not signed by him and that he was working as a gold appraiser under the first respondent. While working so, he was sent out of the office and that Ext. P1 cheque, which was blank, was kept by the revision petitioner in his table in the office of the first respondent and that he was not allowed to take it out. The first respondent took it, forged the signature and prosecution was launched. Going by Ext. P2, it is seen that in addition to the insufficiency of funds, to return the cheque, the bank had stated that the 'signature differs'. Therefore, execution is also in dispute. It is giving reliance to the admission of signature in Ext. P6 reply notice, the courts below arrived at a conclusion regarding the execution of Ext. P1. It is curious to note that Ext. P6 was marked not only after closing the evidence for the first respondent but also after recording the statement under Sec. 313(1)(b) Cr. P.C. Therefore, it goes without saying that the revision petitioner did not get an opportunity to cross examine the first respondent with reference to Ext. P6 and to explain it. In Ext. P6, the advocate on behalf of the revision petitioner who issued the reply had admitted the signature contained in Ext. P1 cheque. According to the revision petitioner, he had not caused any reply and Ext. P6 is a concocted document. It is seen marked on consent. According to the revision petitioner, no such consent was given. Since the courts below had given reliance to Ext. P6 to arrive at a finding regarding the execution of Ext. P6, I find that the revision petitioner was in fact prejudiced by marking Ext. P6 after closing the evidence. He was denied the opportunity to cross examine PW 1 with reference to Ext. P6. It is pertinent to note that the specific case of the revision petitioner is that he had not instructed any lawyer to send any reply. In the event Ext. P6 was issued under instruction given by the revision petitioner, the denial of signature in Ext. P1 now raised lacks bona fides. In view of the nature of defence, it is too difficult to believe that the revision petitioner consented to mark Ext. P6. Even if it is assumed that the revision petitioner conceded, the document should not have been marked without reopening the evidence and thereafter the revision petitioner should have been given an opportunity to explain it. Room for the above controversy is the creation of the Trial Court by marking a relevant document without resorting to the procedures prescribed by the Criminal Procedure Code. In the event Ext. P6 was sought to be marked after closing the evidence and recording statement under S. 313(1)(b) Cr. P.C. and if it is found that such document is essential for just decision of the case, it should have been brought in evidence subject to Ss. 311 and 313 Cr. P.C. Any other procedure has no sanction of law. Ext. P6 can be treated only as a document without proper proof. Adding to that, as found earlier, prejudice was caused to the revision petitioner because of denial of opportunity to cross examine PW 1 with reference to Ext. P6 and by denying opportunity to explain the document. Therefore, conviction and sentence under challenge basing upon Ext. P6 is not sustainable. In the above circumstance, I find that the matter requires reconsideration by the Trial Court after affording opportunity to the first respondent to prove Ext. P6.

(3.) In the result the revision petition is allowed. While setting aside the judgments of the courts below, the case is remanded to the Trial Court for fresh disposal on merits in accordance with law after allowing the first respondent to adduce further evidence to prove Ext. P6. If the first respondent does not propose to adduce further evidence to prove Ext. P6, the case shall be disposed ignoring Ext. P6. The case, being very old, the Trial Court shall give top priority and should be disposed at the earliest, at any rate before 16.12.2011. The parties are directed to appear before the Trial Court on 16.8.2011.