IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 CRL.A.No. 40 of 2002(A) --------------------------------------- CC.221/1999 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT/COMPLAINANT: THANKACHAN ZACHARIA,S/O.SACHARIAS, KANNADY THUNDIYIL, BEHIND ARCH BISHOP'S HOUSE, CHANGANACHERRY. BY ADV. SRI.B.PREMOD RESPONDENTS/ACCUSED/RESPONDENT: 1. JOSEPH THOMAS PANICKAREDOM, S/O. THOMAS, OPPOSITE ERCATTUVAYAL SCHOOL, CHANGANACHERRY-6 (PRESENT ADDRESS IS JOSEPH THOMAS PANICKAREDOM C/O.SOJAN POTHEN, VADAKKUMMURI, MADHUMOOLA, VAZHAPPALLY, CHANGANACHERRY-3. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.J.JULIAN XAVIER FOR R1 SRI.FIROZ K.ROBIN FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.40 of 2002 -------------------------- JUDGMENT The complainant in C.C.No.221/1999 on the file of Chief Judicial Magistrate's Court, Kottayam filed this appeal challenging the order of acquittal. Appellant filed the complaint alleging that first respondent borrowed various amounts and for the outstanding liability of Rupees Ten lakhs, issued Exhibit P2 cheuqe dated 12.4.1999, drawn in his account maintained in Kottayam Branch of Nedungadi Bank. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds under Exhibit P3. Appellant sent Exhibit P4 notice demanding the amount covered by the dishonoured cheque. It was received by the first respondent under Exhibit P6. But, he did not pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. 2. Learned Chief Judicial Magistrate took cognizance of the offence. First respondent, on appearance, pleaded not guilty. Prosecution examined the appellant as PW1 and marked Exhibits P1 to P8. On CRA 40/02 2 the side of the first respondent, he was examined as DW1. Two witnesses were also examined and Exhibits D1 to D3 were marked. Learned Chief Judicial Magistrate, on the evidence, found the first respondent not guilty and acquitted him. The order of acquittal is challenged in the appeal. 3. Appellant would contend that learned Chief Judicial Magistrate did not properly appreciate the evidence and it should have been found that Exhibit P2 cheque was issued towards discharge of an existing liability and first respondent did not rebut the presumption available under Section 139 of Negotiable Instruments Act. It is also contended that payments were made by the appellant during 1997, including December of that year, which was not challenged and it should have been found that Exhibit P2 cheque was issued towards discharge of an existing liability and as it was dishonoured for want of sufficient funds and appellant had complied with all the statutory formalities, first respondent should have been convicted. CRA 40/02 3 4. Evidence of PW1 and DWs 1 to 3 were elaborately considered by the learned Chief Judicial Magistrate. Though Exhibit P2 cheque was issued in the account maintained by the first respondent and it was dishonoured for want of sufficient funds, learned Chief Judicial Magistrate, on the evidence, found that first respondent did not issue Exhibit P2 cheque in discharge of any debt or liability. Evidence of DW1 is that appellant is conducting High Range Chitty Funds and Shalimole Kuncheria, the sister of the appellant is one of the partners and Roy Thomas Murickan, Liji Sebastian and Joseph Thomas are the other partners and appellant is a Chartered Accountant. As there is a provision for running a business in his name, he made his sister as a partner and is conducting the chitty business. The fact that the firm was maintaining accounts in District Co- operative Bank, Changanassery, Federal Bank, Changanassery and Nedungadi Bank, Kottayam was not disputed. According to DW1, he was operating the two accounts in Changanassery Banks and the transaction in Nedungadi Bank, Kottayam was being operated by the appellant. According to DW1, to enable the appellant, CRA 40/02 4 who is a partner of the firm, to run the firm in the name of his sister, first respondent had given signed cheque leaves in one cheque book and handed the cheque book to the appellant and it is in that way, he signed in Exhibit P2, the dishonoured cheque. DW1 asserted that he did not write Exhibit P2 and only put his signature therein and to enable the appellant to run that account, signed cheque leaves were handed over to him and it was misused by the appellant. Though PW1 denied that case when it was put to him at the time of cross-examination, as rightly found by the learned Chief Judicial Magistrate, on going through the evidence of PW1, it is clear that he is not disclosing the true facts. Evidence of DW2 corroborates his evidence. Though PW1 deposed that Rupees Ten lakhs was paid to the first respondent on five occasions, he did not furnish the details of the transactions and that too in detail. Though under Exhibit P1 extract, appellant sought to establish that he had withdrawn amounts from the accounts in various Banks, there is no evidence to prove that those amounts were withdrawn to pay it to the first respondent. On appreciating the CRA 40/02 5 entire evidence in the proper perspective, the view taken by the learned Chief Judicial Magistrate that Exhibit P2 cheque was not proved to be issued by the first respondent in discharge of any debt or liability is in accordance with law. If that be so, there is no reason to interfere with the order of acquittal passed by the learned Chief Judicial Magistrate. Appeal fails and it is dismissed. 2nd August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 40/02 6 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.40 of 2002 -------------------------- JUDGMENT 2nd August, 2010