IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 CRL.A.No. 1381 of 2003() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.114/2003 Dated 11/04/2003 CC.1053/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT: PETITIONER/COMPLAINANT --------------------- MALABAR CEMENTS LIMITED HAVING ITS REGD. AND HEAD OFFICE AT WALAYAR AND BRANCH OFFICE IN MARKET ROAD, NORTH END, ERNAKULAM, COCHIN-18, REPRESENTED BY ITS MANAGER (MARKETING) B.RAJENDRAN BY ADV. SRI.B.S.KRISHNAN (SR.) SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENTS: RESPONDENTS/ACCUSED &STATE ------------------------ 1. MARIA CEMENTS, MATHA SHOPPING COMPLEX, TRIPUNITHURA, ERNAKULAM DISTGRICT 682501, REPRESENTED BY 2ND ACCUSED 2. POULOSE, PARTNER, MARIA CEMENTS, MATHA SHOPPING COMPLEX, TRIPUNITHURA, ERNAKULAM DISTRICT- 682501 3. STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1381 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of June, 2008. Judgment This appeal which is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act is directed against the order of acquittal passed by the trial court. The learned Magistrate held that the appellant-complainant had not established that he had issued the statutory demand notice as contemplated under the Act in respect of Ext.P2 cheque. Accordingly respondents Nos.1 and 2 were acquitted. 2. The case of the complainant, which is a Company registered under the Companies Act, was that the accused had purchased cement from the Company and towards discharge of the liability arising therefrom, issued Ext.P2 cheque dated August 8, 1998 for a sum of Rs.1,07,000/-. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though the accused accepted the statutory demand notice, he did not respond. The liability was not discharged either. Hence the complaint. 3. The defence set up by the accused as is discernible from the statement made under Section 313 of the Code of Criminal Procedure, was that the entire liability had been discharged. The Authorisd Officer of the complainant was examined as Pw.1 and Exts.P1 to P5 were marked in the case. Though there was no oral evidence on the side of the defence, Ext.D1 was marked on its side. Crl.A.1381/03 2 4. Learned Magistrate after considering the oral and documentary evidence held that Ext.P2 cheque was issued by the accused in discharge of an existing liability. It was also found that the cheque was dishonoured due to insufficiency of funds in the account of the accused. The contention raised by the petitioner/accused that Pw.1 had no authority to represent the Company was also repelled. Similarly the other contention raised on behalf of the accused that the dispute ought to have been referred to an Arbitrator as per the agreement was also not accepted. 5. The learned Magistrate proceeded to hold that there was no evidence to show that the statutory demand notice had been served on the accused at Thrippunithura. This was not denied or disputed. It is seen from the records that the acknowledgement card evidencing receipt of the notice had in fact been produced as document No.6 but it is not seen marked in the case. It is also seen from the original deposition that Pw.1 had in fact stated that the acknowledgment card was produced but the said sentence is seen scored off by the learned Magistrate. But anyhow the fact remains that the acknowledgment card bearing the signature of the accused was not marked in the case. 6. In this context it may be noticed that the accused did not have a case that the demand notice had not been served on him. But still the complainant has to necessarily establish that the statutory mandate had been complied with. 7. Yet another defect noticed by the learned Magistrate in the Crl.A.1381/03 3 prosecution case was that the complainant had stated in the complaint that the cheque bore the date August 8, 1997. The copy of the demand notice which was produced (but not marked) also refers to the date as August 8, 1997. But in chief examination, Pw.1 stated that the cheque was dated August 8, 1998. Ext.P2 cheque also shows the correct date. It is surprising that learned Magistrate had ignored the above aspect and acquitted the accused on a hyper technical ground, especially when the records and the evidence indicated otherwise. 8. Having regard to the entire facts and circumstances I have no hesitation to hold that the order of acquittal passed by the court below cannot be sustained. Therefore the order of acquittal is set aside. The case is remitted to the court below for disposal in accordance with law. It will be open to the complainant and the accused to adduce further evidence, if any, in the matter. The court below shall dispose of the matter as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. Registry shall send back the records to the court below forthwith. an. A.K. Basheer Judge.