IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRL.A.No. 301 of 2002() ----------------------- ST.195/1990 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT(S): COMPLAINANT ------------------------- V.K.SHAMSUDEEN, P.W.D.CONTRACTOR, VARISSERIL HOUSE, MARIATHURUTHU P.O., KOTTAYAM-27. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR RESPONDENT(S): ACCUSED ---------------------- P.K.DINESHAN, MANAGING PARTNER, REVATHY CORPORATION, S.L.PURAM P.O., ALLEPPEY DISTRICT. ADV. SRI.V.V.ASOKAN FOR R1 SMT.S.AMINA FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 301 OF 2002 = = = = = = = = = = = = = = = Dated this the 25th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the learned Chief Judicial Magistrate Court, Kottayam in S.T.195/90. It is the case of the accused that an amount of Rs.80,000/- was outstanding with the accused for which the accused issued two cheques. When the cheque dated 29.12.89 was presented for encashment on 1.6.90 it was returned stating it exceeds the arrangement. Thereafter a lawyer notice was issued to which a false reply was sent. As the amount was not paid the prosecution has been launched. 2. On the other hand the accused would contend that the cheques were issued only as a security for the payment of the purchase of the materials to be supplied by the complainant. The cheques were not dated. According to the accused materials worth Rs.60,000/- were supplied and the amount was paid. Also materials worth Rs.7,745/- and Crl.A. 301 OF 2002 -2- Rs.2,960/- were also supplied for which money was granted. Thus a total amount of Rs.75,165/- was paid and the balance remaining was only Rs.11,307/-. Instead of accepting the same the complainant had filled the cheque and presented a case of this nature. 3. The complainant as PW1 would depose that he had not committed any mischief and the cheque which was issued towards the price of the purchase materials was presented for encashment. Now it can be seen that Ext.D3 is a notice issued by Advocate V.N. Sibhangan to Sri. V.A.Abraham which could not be served and that notice is dated 12th December, 1989. It has to be remembered that the disputed cheque in this case is 29.12.89, i.e. 17 days after the issuance of this notice. In Ext.D3 notice what is set up as the defence case had been elaborately detailed and it is also stated that the accused is willing to settle the accounts and the balance amount due and it is also contended that the claim based on the cheques raised in the notice are illegal. Or in other words, Ext.D3 would Crl.A. 301 OF 2002 -3- reveal that a notice has been issued on 1.12.89 to which a reply had been sent on 12.12.89 but the reply issued was not received by the lawyer to whom it was addressed and subsequently we find a cheque dated 29.12.89 is presented and a notice is issued on 20.6.90 by the very same advocate who had refused to receive the notice. It is also very important to note that the cheque numbers including the disputed cheque is made mention of in Ext.D3 notice which would conclusively show that the cheque was not issued on 29.12.89 as alleged by the complainant. So a reading of Ext.D3 would reveal the real facts of the case. A very look on the disputed cheque, Ext.P1 with the naked eye also would show that the date 29.12.89 has been subsequently incorporated. Therefore the court below was perfectly justified in holding that the evidence of PW1 is not sufficient to hold that Ext.P1 cheque has been issued towards any debt which was liable to be discharge by the accused. On the contra, the materials probabilises the case of the accused and therefore Crl.A. 301 OF 2002 -4- the court below on a consideration of the materials correctly held that the prosecution has failed to prove the case and thereby acquitted the accused. The order of acquittal does not call for any interference. Therefore the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 301 OF 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 301 OF 2002 = = = = = = = = = = = J U D G M E N T 25th August, 2009