IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 CRL.A.No. 641 of 2001 CC.275/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT/COMPLAINANT: SREELATHA PADMANABHAN W/O PADMANABHAN 'PADMASREE', PALAVALAPPIL CHOVVA, KANNUR DISTRICT BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/ACCUSED: N.K.SHYLAJA W/O C.P.RADHAKRISHNAN PROPRIETRIX KAMBIL MEDICALS, KAMBIL. BY ADV. SRI.N.NAGARESH SRI.K.BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON 25/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.641 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of February 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The trial court acquitted the respondent/accused holding that Ext.P1 cheque was not issued in discharge of any debt or liability as alleged by the complainant. The above order of acquittal is under challenge in this appeal. 2. The gist of the complainant's case was that she and the accused had been running a medical shop in partnership since 1986 and that she had retired from the partnership on March 31, 1997. According to the complainant, the accused had agreed to pay Rs.3,00,000/-, (the amount shown in Ext.P1 cheque) “as full and final satisfaction” after the dispute in the partnership business was settled through mediators. It was further averred in the complaint that the accused had issued Ext.P1 cheque dated January 21, 1998 in discharge of the said liability. But when the cheque was presented for encashment, it was dishonoured due to Crl.A.No.641 OF 2001 :: 2 :: insufficiency of funds in the account of the accused. Though a statutory notice was issued by the complainant demanding payment, the accused did not discharge the debt. On the contrary, he issued a reply raising false contentions. Hence the complaint. 3. The complainant was examined before the trial court as PW1. Exts.P1 to P9 were also marked on her side. DW1 and DW2 were examined on the side of the defence and Exts.D1 to D7 were also marked. As mentioned earlier, the learned Magistrate held that the complainant had not established her case and accordingly the accused was acquitted. 4. It had come out in evidence that the partnership business in question was started way back in the year 1986. It is seen admitted by the complainant herself that she was in charge of managing the business and maintenance of accounts till 1994. The accused had taken over management of the business from 1994 till 1997. It is the common case that some dispute had arisen between the partners. Significantly, Ext.D3 dissolution deed was executed on March 31, 1997. In cross examination, the Crl.A.No.641 OF 2001 :: 3 :: complainant admitted that an Arbitrator was appointed by the parties to settle the dispute after perusing the books of accounts. 5. But in the complaint, no reference had been made with regard to the appointment of Arbitrator. The complaint proceeded as though the dispute had been settled through mediators and the accused had agreed to pay a sum of Rs.3,00,000/- to the complainant in full and final settlement of the accounts. According to the complainant, Ext.P1 cheque was issued pursuant to the above agreement. But when the accused confronted the complainant with Exts.D4 and D5 which revealed that the Arbitrator appointed by the parties had been put in charge of settling the accounts, she conceded that accounts were yet to be settled. 6. In this context, it may be noticed that in response to Ext.P4, statutory demand notice issued by the complainant, the accused had specifically asserted that she had handed over two blank signed cheques (numbers of the cheques were also clearly mentioned) to the Arbitrator with specific instructions to him with regard to the manner in which the two cheques had to be Crl.A.No.641 OF 2001 :: 4 :: utilised at the appropriate stage in the course of the arbitration proceedings. Significantly, the complainant had not mentioned the cheque number in the demand notice. In the complaint also the cheque number was not mentioned. It was contended by the accused in the reply notice that one of the two cheques handed over by her to the arbitrator was being attempted to be misused by the complainant and that several issues in dispute are yet to be resolved. It was further asserted by the accused in the reply notice that she was not liable to pay any amount to the complainant nor had she agreed to pay a sum of Rs.3,00,000/- as alleged. The learned Magistrate had adverted to the oral and documentary evidence on record elaborately. As rightly noticed by the learned magistrate, the complainant had not produced the balance sheet nor had she produced the books of accounts or such other document which could have thrown some light into the rival claims made by the parties with regard to the assets and liabilities. The court below had also noticed that Ext.D2 series, the profit and loss accounts, produced by the accused would Crl.A.No.641 OF 2001 :: 5 :: believe the version given by the complainant that an amount of Rs.3,37,764/- was due from the accused to the complainant. In short, the court below had examined the relevant aspects of the case meticulously and come to the conclusion that Ext.P1 cheque was not supported by consideration. I do not find any material illegality or irregularity in the order of acquittal passed by the court below. Appeal is without any merit and it is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.A.No.641 OF 2001 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.641 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 25th Feb. 2008