IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 CRL.A.No. 1217 of 2002 -------------------------------------- CC.225/1994 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... APPELLANT/COMPLAINANT: ---------------------- LEWIS KEVIN, S/O. N.B.LEWIS, EMNIC COTTAGE, P.O.MEPPADI, KOTTAPPADY AMSOM DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/ACCUSED: 1. P.P.ISSAC, S/O. PAILEE, PUTHYATH HOUSE, KRISHNAGIRI P.O., MEENANGADI, WYNAD DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.RAMESH CHANDER PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1217 of 2002 --------------------------- JUDGMENT The complainant in C.C.No.225/94 on the file of the Chief Judicial Magistrate's Court, Kalpetta is the appellant. He filed the complaint in the court below complaining of commission by the first respondent of an offence punishable under Section 138 of the Negotiable Instruments Act. 2. On appearance of the first respondent in the court below, pursuant to receipt of summons, he was questioned by the learned Chief Judicial Magistrate, reading out the particulars of the offence and explaining it to him. Thereupon he pleaded not guilty and consequently, a trial of the case was conducted. 3. On the side of the appellant/complainant, PWs 1 and 2 were examined and Exhibits P1 to P16 were marked. On the side of the first respondent/ accused, DW1 was examined and Exhibits D1 to D4 were marked. On the appellant/complainant closing CRA 1217/02 2 his evidence, the first respondent/accused was questioned under Section 313 Cr.P.C. Thereupon he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. He denied the entire case spoken to by the complainant and according to him, there was no necessity at all to receive any amount by way of loan for remittance of the same in the auction, as alleged by the complainant. 4. The case of the first respondent/accused is that he lost two signed cheque leaves and stamp papers kept signed by him in his car after the auction and on realising that he immediately wrote to the bank on 1.10.1993 and it is, thereafter, on 17.1.1994, he received a lawyer notice from the complainant, to which he had issued reply stating all the facts and that no amount at all is due to the complainant. Exhibit P13 is the stop memo, which is stated to have issued by the first respondent to the bank on 1.10.1993. But, therein, CRA 1217/02 3 his case was that he lost one signed blank cheque leaf bearing No.314573 and some other papers, without specifying that they were stamp papers. It is not known why the number of the other cheque leaf was not mentioned. From Exhibit P13, it is evident that what is lost is only one cheque leaf. 5. It is vehemently contended by the counsel for the appellant that the contentions that are raised by the first respondent are all false and that after issuing Exhibit P13, he has fraudulently issued Exhibit P3 cheque on the cheque leaf, which is made mention of in Exhibit P13 so as to cheat and defraud the appellant; that Exhibits P1 and P2 would go to show that it is in discharge of the liability due thereunder that Exhibit P3 cheque was issued and that though there is lack of proof of Exhibits P1 and P2 for reason of not examining any of the attestors thereto, the telling circumstance that the first respondent had no explanation at all as to why he kept blank stamp papers signed, goes a CRA 1217/02 4 long way to establish the truth of the appellant's case. 6. It is contended by the counsel for the first respondent that the very case of the complainant is that the transaction has taken place in connection with the auction of Foreign Liquor shop; that according to the complainant, the auction was being conducted at the Jinachandra Memorial Hall and the transaction has taken place there, whereas, the fact remains that the auction was conducted in the Conference Hall of the Collectorate in Kalpetta Civil Station and that spoils the very foundation of the case of the appellant/complainant. 7. Considering the entire circumstances of the case, I am unable to believe the defence set up by the first respondent. All the same, there is no convincing evidence to establish the case of the appellant either. In the circumstances, to avoid any injustice being meted out to the parties, I am of the view that the matter has to be sent back to CRA 1217/02 5 the learned Chief Judicial Magistrate for consideration afresh, after affording an opportunity to both sides to adduce further evidence as they may desire. In the result, I set aside the order under appeal and remit the case back to the Court of Chief Judicial Magistrate, Kalpetta to enable the parties to adduce further evidence, inter alia, in proof of execution of Exhibits P1 and P2. Both sides shall be entitled to adduce further evidence as they may desire to establish their contentions. The parties shall co-operate for a speedy disposal of the case, considering the fact that the case is one of the year 1994. The court below shall dispose of the case afresh, after affording an opportunity to both sides to adduce further evidence, however, within a period of three months from the date of appearance of the parties in the court below. The parties shall be at liberty to produce a copy of this judgment to enable the court CRA 1217/02 6 below to dispose of the case as early as possible. The parties shall appear in the court below positively on 12.2.2008. The Registry shall forward the records to the court below forthwith so as to enable it to take up the case on 12.2.2008. 14th January, 2008 (K.P.Balachandran, Judge) tkv CRA 1217/02 7 K.P.Balachandran, J. ---------------------- Crl.A.No.1217 of 2002 ---------------------- JUDGMENT 144th January, 2008