IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 CRL.A.No. 480 of 2001(C) ------------------------ CC.713/1998 of JUDL. MAGISTRATE OF FIRST CLASS-II, KOCHI .................... APPELLANT: -------------- R. PADMAKUMAR, PROPRIETOR, MANGATTU CARTON INDUSTIRES, KODAMTHURUTHY, KUTHIYATHODU P.O. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: --------------- 1. RAZIM USMAN, AL-RAZ EXPORTS, XII/382, 3RD FLOOR, DARUSALAM ROAD, COCHIN-2. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. ADV. SRI.V.M.KURIAN FOR R1 SRI.A.V.THOMAS FOR R1 SRI.MATHEW B. KURIAN FOR R1 SRI.K.T.THOMAS FOR R1 P.P.SRI. C.M. KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.No.480 OF 2001-C - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2009 JUDGMENT Appellant had prosecuted respondent No.1 for the offence punishable under Section 138 of the Negotiable Instruments Act on the allegation that Ext.P1 cheque issued by the latter in discharge of an existing liability was dishonored, when it was presented for encashment and thereby he had committed the above offence. 2. The trial court, after evaluating the oral and documentary evidence available on record, held that appellant/complainant had failed to prove that Ext.P1 cheque had been issued by the accused in discharge of any legally enforceable liability and accordingly acquitted the accused. The above order of acquittal is under challenge in this appeal. 3. The case of the complainant in brief was that he had supplied cartons manufactured by his proprietary concern M/s. Mangattu Carton Industries to the accused during 1997 - '98 as per bills. In connection with the supply of cartons, the accused owed Rs.1,90,706/- to the complainant. The accused had issued : 2 : Ext.P1 cheque for Rs.1,00,000/- dated March 11, 1998 towards part payment of the amount due. Apart from the above, accused had also made payment of Rs.50,000/ by way of two demand drafts. But, when Ext.P1 cheque was presented for encashment, it was dishonored due to insufficiency of funds in the account of the accused. In response to the statutory demand notice issued by the complainant, the accused sent a reply disputing the liability. Hence the complaint. 4. The complainant was examined as PW1 and his witness was examined as PW2. Ext.P1 to P8 were also marked on the side of the complainant. Though there was no oral evidence on the side of the defence, Ext.D1 and Ext.D2 were marked. 5. The defence set up by the accused was that he had acted only as an agent for sale of cartons manufactured by the complainant to various customers. According to the accused, he had issued Ext.P1 cheque as a security for supply of cartons on credit. 6. The learned Magistrate, while dealing with the evidence adduced by the complainant, noticed that he had admitted in the course of his examination as PW1 that the accused had : 3 : purchased cartons for M/s. Omison Exporters and that amounts were due from a sea food company. The learned Magistrate further noticed that complainant had admitted that the accused had issued Ext.P1 cheque as security for payment of the value of cartons. 7. The learned counsel for the complainant has taken me through the deposition of PW1. It may at once be noticed that the accused did not have a case that he had had no business transaction with the complainant. To be specific, the accused did not have a case that he had never purchased cartons from the complainant. But his case was that he had acted as an agent and purchased cartons from the complainant for supply to other needy customers. It may also be noticed that the accused did not dispute his signature in Ext.P1 cheque or the execution thereof. But the case of the accused was that he had issued Ext.P1 cheque for Rs.1,00,000/- as demanded by the complainant as security. Significantly, accused had not adduced any evidence in this regard. He had also not bothered to produce any documents to show that he had been authorised or engaged as an agent for supply of cartons manufactured by the complainant. In the absence of such evidence, the learned Magistrate in my view : 4 : was not justified to jump to an unwarranted conclusion that the accused had acted as an agent or middle man for supply of the cartons manufactured by the complainant. 8. In this context, it may also be noticed that the complainant had asserted in the course of his examination that amounts were due from the accused towards value of the cartons supplied to him on the strength of purchase bills. It is true that the complainant had not produced the bills though he stated in the course of his examination that he was prepared to do so. Learned counsel for the appellant submits before me that the bills though were available could not be produced before the trial court. He seeks leave of the court to produce them before this Court. 9. Learned Magistrate had also noticed that the complainant had admitted in the course of his examination that the accused had issued the cheque in question as security for payment of the dues being the value of the cartons. However, the complainant had categorically asserted that he had no business transaction with M/s.Omison Exports. 10. As mentioned earlier, the accused did not dispute : 5 : the contention raised by the complainant that he had purchased the cartons from the complainant. But, according to the accused, the purchase was effected by him in order to supply them to various other customers. According to the complainant, cartons were purchased by the accused, bills were also raised in the name of the accused and Ext.P1 cheque was issued by the accused towards the purchase value of the cartons. Similarly, the accused had made payment of Rs.50,000/= by way of two demand drafts towards the value of the cartons. The above admitted position will undoubtedly show that the business transaction between the complainant and the accused stood established. Therefore, the contention raised by the accused that he had issued Ext.P1 cheque only as security cannot be accepted at all. Any how, I do not propose to deal with the above aspect any further, in view of the order which I propose to pass. 11. Having heard learned counsel for the parties and having perused the entire materials available on record, I have no hesitation to hold that the impugned order is wholly unsustainable. Therefore, the order of acquittal is set aside. The case is remanded to the court below for disposal in : 6 : accordance with law. It is made clear that it will be open to the parties to adduce further evidence, if any. The court below shall dispose of the case as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The appellant and respondent No.1 shall appear before the court below on January 19, 2009. (A.K.BASHEER, JUDGE) cl A.K.BASHEER, J. CRL.A.No.480 OF 2001-C JUDGMENT 2nd January, 2009