IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 CRL.A.No. 1415 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.228/2003 Dated 22/07/2003 CC.1734/1998 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT(S): -------------- THURUTHY SERVICE CO-0PERATIVE BANK LTD, NO.1486, REPRESENTED BY ITS SECRETARY, THURUTHY, CHANGANACHERRY. BY ADV. SRI.JOMY GEORGE RESPONDENT(S): --------------- 1. M/S.MOONNUKANDATHIL MODERN MILLS, ARPOOKARA WEST P.O., REPRESENTED BY ITS MANAGING PARTNER, M.J.JACOB, KOTTAYAM-8 2. M.J.JACOB, MANAGING PARTNER, M/S.MOONNUKANDATHIL MODERN MILLS, ARPOOKARA, KOTTAYAM-8 3. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.J.THOMAS FOR R1 & R2 PUBLIC PROSECUTOR, SMT.S.HYMA FOR R3. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2011, ALONG WITH CRA NO.1419 OF 2003, CRA NO.1417 OF 2003, CRA NO.1411 OF 2003, CRA NO.1412 OF 2003, CRA NO.1420 OF 2003,CRA NO.1416 OF 2003 CRA NO.1410 OF 2003, CRA NO.1418 OF 2003.THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU P.S. GOPINATHAN, J. ---------------------------------------------------------- Crl.A.No. 1415 of 2003 & Crl.A.No. 1419 of 2003 & Crl.A.No. 1417 of 2003 & Crl.A.No. 1411 of 2003 & Crl.A.No. 1412 of 2003 & Crl.A.No. 1420 of 2003 & Crl.A.No. 1416 of 2003 & Crl.A.No. 1410 of 2003 & Crl.A.No. 1418 of 2003 ---------------------------------------------------------- Dated this the 13th day of December, 2011 JUDGMENT These appeals are preferred by the complainant against the common judgment of acquittal in C.C.Nos.1258/1998, 1259/1998, 1260/1998, 1272/1998, 1273/1998, 1274/1998, 1734/1998, 1735/1998 and 1578/1998 on the file of the Judicial Magistrate of the First Class-II (Mobile), Kottayam. 2. The appellant prosecuted respondents 1 and 2 alleging offence under Section 138 of the Negotiable Instruments Act. It was alleged that the first respondent firm, of which, the second respondent is the Managing Partner had purchased paddy from the appellant society on various occasions for a total value of Rs.23,64,644/- Out of that, Rs.14,73,673/- was paid and a balance sum of Rs.8,68,743/- was due from Crl.A.No. 1415 of 2003 & C.Appls. 2 respondents 1 and 2 to the appellant bank. In discharge of that liability, 9 cheques involved in the 9 cases were issued by respondents 1 and 2. Cheques involved in C.C.No.1258/1998, C.C.No.1259/1998, C.C.No.1260/1998, C.C.No.1272/1998, C.C.No.1273/1998 and C.C.No.1274/1998 are for Rs.1,00,000/- each. Crl.A.No.1420/2003, Crl.A.No.1418/2003, Crl.A.No.1410/2003, Crl.A.No.1417/2003, Crl.A.No.1416/2003 and Crl.A.No.1412/2003 are preferred in the above Calender Cases. In the above cases, four of the cheques are dated 8/4/1998. One cheque is dated 4/4/1998 and the remaining one is dated 5/4/1998. In C.C.No.1734/1998, the cheque is dated 10/5/1998 and the amount is Rs.1,15,933/-. In C.C.No.1735/1998, the cheque is dated 10/5/1998 and the amount is Rs.1,15,000/-. In C.C.No.1578/1998, the cheque is for Rs.37,860/- dated 10/6/1998.Crl.A.No.1415/2003, Crl.A.No.1411/2003 and Crl.A.No.1419/2003 are the appeals from the above three cases. Ext.P3 produced in all cases is the relevant cheque. When presented for collection, all the cheques were returned dishonoured for insufficient funds as evidenced by Ext.P4 memo and Ext.P5 intimation. Demanding discharge, separate notices were caused to the 1st respondent. Ext.P6 in all cases are the copies of the notice. Crl.A.No. 1415 of 2003 & C.Appls. 3 Notices were acknowledged by the second respondent on behalf of the first respondent as evidenced by Ext.P7. But the liability was not discharged. 3. Respondents 1 and 2 pleaded not guilty. Hence, they were sent for trial. On the side of the appellant, then Secretary-in-charge was examined as PW1. Ext.P1 to P11 were marked. Respondents took a plea of discharge and further advanced a contention that at the time of transaction, the appellant had obtained 10 blank cheques and that though the liability was discharged, the cheques were not returned and misusing those cheques, the prosecution was launched. A person claims to have seen the issuance of blank cheques was examined as DW1. Second respondent was examined as DW2. On the side of respondents 1 and 2, Ext.D1 to D7 series were marked, while PW1 was cross examined. 4. The learned Magistrate on appraisal of the evidence arrived at a finding that after notice there is payment of Rs.2,00,000/- by Demand Draft and that the liability in two cases was discharged and that the accounts maintained by the appellant is not at all reliable and that PW1 had deposed that cheques in dispute were issued in March 1998. Whereas last transaction was on 11/4/1998. Therefore, as on the date of the Crl.A.No. 1415 of 2003 & C.Appls. 4 issuance of the cheques, so much amounts were not due from the respondents. Consequently, respondents 1 and 2 were acquitted by judgment dated 4/4/2003, assailing which the appeals are preferred. 5. I have heard Adv.Sri.Sebastian Thomas on behalf of the appellant and Adv.Sri.M.J.Thomas on behalf of the respondents. Perused the judgment impugned and the evidence on record. 6. As mentioned earlier, Ext.P3 in C.C.Nos.1258/1998, 1259/1998, 1260/1998, 1272/1998, 1273/1998 and 1274/1998 is for Rs.1,00,000/- each. Ext.P6 notice in those cases is dated 30/4/1998. Ext.D1 is the copy of the affidavit in O.S.No.140/2001 on the file of the Sub Court, Kottayam instituted by the appellant. In Ext.D1, it is stated that out of the total amount of Rs.8,68,793/- due Rs.2,00,000/- was paid through two Demand Drafts, each for Rs.1,00,000/- dated 6/5/1998 and 9/5/1998. Evidently, that payment is subsequent to the notice in the above 6 cases. The evidence of PW1 would show that, the above amount was originally credited in a miscellaneous account and in August, that was credited to the accounts of the respondents. If that is so, there is discharge Crl.A.No. 1415 of 2003 & C.Appls. 5 of liability in 2 cases and the appellant should not have launched prosecution in 2 cases. But that was not chosen too. Sitting in appeal, I am afraid to account that amount in any of the two cases and to proceed with the other 4 cases. One of the reasons stated by learned Magistrate in acquitting the respondents is the above payment. I find that as regards, those six cases, the reasons stated by the learned Magistrate requires no interference. 7. The above payment covered by the Demand Drafts mentioned in Ext.D1 would not affect the manitainability of C.C.No.1734/1998, C.C.No.1735/1998 and C.C.No.1578/1998 because the cheques in C.C.No.1734/1998 and C.C.No.1735/1998 is dated 10/5/1998 and the cheque in C.C.No.1578/1998 is dated 10/6/1998.The presentation of the above three cheques is, no doubt, subsequent to the above dates. In C.C.No.1734/1998 and C.C.No.1735/1998, the notices were dated 8/6/1998 and in the other case notice is dated 18/8/1998. Therefore, there is no discharge responding to the above notices. Such being the demand and receipt of the notices, the respondents are not entitled to be acquitted in consequent to the payment of Rs.2,00,000/- by Demand Drafts dated 6/5/1998 and 9/5/1998 stated in Ext.D1. Crl.A.No. 1415 of 2003 & C.Appls. 6 8. One of the reason for acquittal, as mentioned earlier, is that in the evidence of PW1 she had deposed that the cheques were issued in March 1998 and evidenced by Ext.P11 purchase bills, the last purchase was on 11/4/1998. Therefore, amounts were not due as on the date of delivery of the cheques. The learned counsel for the appellant submitted that it is a mistake committed by the learned counsel while putting a leading question to PW1. Whatever may be the background, so long as the evidence of PW1 on that aspect remains on the record, respondents 1 and 2 are entitled to the benefit of reasonable doubt, irrespective of the dispute as to how it happened. In this view of the matter, the acquittal on that defence requires no interference. 9. The other reason given by the Magistrate is regarding the reliability of the accounts. On carefully going through Ext.D1 to D7 series and evidence of PW1 and that of the second respondent as DW2, I could not find anything in support of the conclusion arrived by the learned Magistrate because PW1 had given satisfactory answers with reference to the Ext.D1 to D7 series. The second respondent cannot point out any error or illegality in maintaining any of the account Crl.A.No. 1415 of 2003 & C.Appls. 7 books by the appellant. Therefore, that conclusion is not sustainable. However, for reasons stated in pre-paragraph, I find no reason to interfere with the judgment impugned. The appeal is devoid of merits. In the result, the appeals are dismissed. P.S.GOPINATHAN, JUDGE su