IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 CRL.A.No. 1102 of 2002 -------------------------------- CC.464/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... APPELLANT: COMPLAINANT --------------------------------------- 1. P.PAPPACHAN, MANAGING PARTNER, P.PAPPACHAN & COMPANY, KUNJARATHU, PANAVALLY P.O., CHERTHALA (DIED) * 2. JOY P., S/O LATE P. PAPPACHAN, AGED 45 YEARS KUNJARATHU, PANAVALLY, POOCHACKAL P.O., CHERTHALA. (IMPLEADED AS PER ORDER DT. 12.1.2009 IN CRL. M.A. 11555 OF 2009) BY ADV. SRI.N.NAGARESH RESPONDENTS : ACCUSED & STATE ---------------------------------------------------- 1. RAGHAVAN SATHYAN, ASMI BHAVAN, PATTANAKKADU P.O., CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.G.PAVITHRAN R2 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 1102 OF 2002 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of January, 2009 J U D G M E N T Challenging judgment dated 31.7.2002 of the Judicial First Class Magistrate Court II, Cherthala in C.C. 464 of 2009, the complainant therein, preferred this appeal. As per the impugned order, the accused in a prosecution for offence under Section 138 of the Negotiable Instruments Act was acquitted under Section 255(1) of Cr.P.C. 2. While the above appeal is pending before this Court, the complainant/original appellant expired on 22.9.2006. The son of the complainant late Sri. P. Papacchan, preferred Crl. M.A. 11555 of 2008 for impleading himself as additional appellant and seeking permission to prosecute the appeal. By separate order dated 12.11.2009 said petition was allowed by this court. 3. Case of the complainant is that they were doing coir business and the accused on 5.10.97 at about 10 A.M. came to the shop of the complainant and purchased coir for a sum of Crl. Appeal No. 1102 of 2002 : 2 : Rs.31,963.50 paise and issued cheque for the said amount drawn on the Kavil Service Co-operative Bank Limited, Pattanakkad. towards the price of the coir purchased by him. According to the complainant, when the above cheque presented for encashment the same was dishonoured for the reason “full cover not received”. Thereafter, the complainant caused to sent a lawyer notice intimating the accused regarding the return of the cheque and demanding to pay the amount. According to the complainant, the said notice was accepted by the accused on 6.3.1998 but no amount was paid and no reply was sent. Thus, according to the complainant accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act and with the above allegation he had approached the court below and the court below took cognizance upon the complaint and instituted C.C. 464 of 1999. 4. When the accused appeared, particulars of offence were read over and explained to him and he pleaded not guilty which resulted in the further trial of the case, during which PW1 was examined and Ext.P1 to Ext.P7 were marked from the side of the complainant. No evidence was adduced from the side of the Crl. Appeal No. 1102 of 2002 : 3 : defence and they took a stand of total denial. On the basis of the rival pleadings and contentions the trial court formulated three issues for its determination and finally found that case of the complainant is doubtful and accordingly benefit of doubt was given to the accused and thus found that accused is not guilty of the offence and acquitted him under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 5. I heard the learned counsel for the appellant as well as the respondent. The learned counsel for the appellant submitted that in Ext.P3, issued from the bank of the accused, it is stated that cheque was returned for the reason 'full cover not received' and according to the learned counsel the reason mentioned therein for the dishonour of the cheque is equivalent to that of insufficiency of funds in the account of the accused. But the trial court on erroneous understanding held that complainant has not established the essential ingredients of Section 138 of the Negotiable Instruments Act and accordingly impugned judgment was passed. Thus, according to the counsel the judgment of the court below is liable to be set aside. Crl. Appeal No. 1102 of 2002 : 4 : 6. According to the counsel for the respondent, the transaction alleged in the complaint will not come under Section 138 of the Negotiable Instruments Act and therefore the judgment of the court below is absolutely correct and no interference is warranted. 7. I have carefully considered the contention advanced by both the parties and also perused the evidence and materials on record. Going by the judgment of the court below, it can be seen that the trial court has categorically found that accused had purchased coir from the shop and Ext.P1 issued towards the discharge of the said liability. The trial court has further found that accused had not discharged his burden to rebut the presumption available in favour of the complainant under Section 139 of the Negotiable Instruments Act. The trial court has also found that the accused had executed and issued Ext.P1 cheque in favour of the complainant. 8. But under point No. II the trial court found that complainant has failed to establish that Ext.P1 cheque was dishonoured for want of sufficient funds in the account of the accused. After discussing the essential requirement of Section Crl. Appeal No. 1102 of 2002 : 5 : 138 of the Negotiable Instruments Act, the court below found that it is the burden of the complainant to prove the reason for dishonour of cheque will fall within the meaning of the Section 138 of the Negotiable Instruments Act. But the evidence available on record is not clear. Thus accordingly the trial court found that prosecution has not succeeded in proving that cheque was dishonored for want of funds in the account of the accused. 9. The above observations and findings cannot be held fully incorrect. In paragraph 11 of the impugned judgment the trial court has held that : Ext.P3 is the dishonour memo issued by Kavil Service Co-operative Bank. The reason for dishonour is `full cover not received'. However, the concerned official from the Kavil Service Co- operative Bank Limited was not examined by the prosecution. What is the meaning full cover not received cannot be ascertained from the evidence in this case. From the above observations and discussions of the court below I am of the view that the evidence is insufficient in terms of Section Crl. Appeal No. 1102 of 2002 : 6 : 138 of Negotiable Instruments Act. 10. Ext.P3 is the dishonour memo issued by the Kavil Service Co-operative Bank Ltd wherein 15 probable reasons are printed and shown for dishonouring a cheque while showing the dishonour memo, appropriate reason can be marked. As the reason for dishonouring the cheque, in the present case, the tick mark is given against “full cover not produced”. Out of the above mentioned 15 reasons for dishonouring the cheque, no reason is incorporated as “insufficiency of funds”. Ext.P2 produced by the complainant is the intimation memo received from the Federal Bank, Poochackal branch which is the banker of the complainant. On a perusal of Ext.P2 it can be seen that reason is shown as item No.24 i.e. “insufficient funds”. Thus on a perusal and comparison of Ext.P2 and Ext.P3 it can be seen that in Ext.P3 among reasons for dishonour of cheque, “insufficiency of funds” not incorporated. Therefore what seen in Ext.P3 that “full cover not received”, according to the counsel for the complainant, is equivalent to that of insufficiency of funds. This Court is not in a position to accept the same at this stage since there is no evidence to that effect. As pointed out by the trial court, the officials of the Kavil Service Co- Crl. Appeal No. 1102 of 2002 : 7 : operative Bank Ltd., is not examined by the prosecution. It is also clear that no document was summoned and proved to show that there was no sufficient funds to honour Ext.P1 cheque. Had the complainant taken steps to summon the requisite documents from the bank of the accused and the officials concerned are examined, the trial could would have been in a position to met the above point. Therefore, the complainant ought to have taken such proceedings to substantiate his case. In this juncture it is relevant to note that the trial court based upon the available materials has categorically found about the transaction entered into between the complainant and accused and the execution and issuance of Ext.P1 cheque. It is also relevant to note that Ext.P1 cheque is for an amount of Rs.31,963.50 being the price for the coir purchased by the accused. Therefore, under the above circumstances I am of the firm opinion that an opportunity must be given to the complainant to substantiate his case that Ext.P1 cheque was dishonoured for want of sufficient funds and to adduce evidence to that effect. 10. In the result, this criminal appeal is disposed of remanding the case to the trial court for fresh consideration Crl. Appeal No. 1102 of 2002 : 8 : whether Ext.P1 cheque was dishonored for want of sufficient funds in the account of the accused and the appellant/complainant will be at liberty to adduce evidence to substantiate the above point by producing necessary documents either directly or by summoning the same from the bank of the accused and also examining the officials of the Kavil Service Co-operative Bank. For enabling the court below to take fresh decision, the judgment is set aside. The respondent/accused is also free to adduce evidence, if so advised, to substantiate his plea. The trial court is directed to take up complaint on 16.2.2009, on which date the parties are directed to appear before the court below and to proceed with the case in accordance with the procedure in the light of the above direction and to dispose the case on merit as expeditiously as possible. This criminal appeal is disposed of accordingly. (V.K. MOHANAN, JUDGE) KMD