IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 1186 of 2003() ------------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.182/2003 Dated 10/07/2003 CC.448/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... APPELLANT(S): COMLPLAINANT: --------------------------- BENNY GEORGE, S/O. GEORGE, VATTAPPALATHU HOUSE, PRAVITHANAM KARA, BHARANANGANAM VILLAGE. BY ADVS. MR.PHILIP T.VARGHESE MR.THOMAS T.VARGHESE RESPONDENT(S): STATE AND ACCUSED: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.R. RAVIKUMAR, MALIACKAL HOUSE, KARUMASSERI P.O., ALUVA. BY PUBLIC PROSECUTOR MR.THOMAS JOHN AMBOOKEN BY ADVS. MR.V.B.UNNIRAJ FOR R2 MR.C.P.TENNY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1186 OF 2003 ------------------------------ Dated this the 24th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.448/2000 of the Judicial Magistrate of the First Class, Pala. It is the case of the complainant that for the film Red Indians, an advertisement was published by the complainant, and towards the discharge of the advertisement, the accused on behalf of M/s. Revathy Communications, issued a cheque, which when presented for encashment, returned with the endorsement of insufficiency of funds. Notice was issued but no reply was sent. The court below considered Ext.P1 and as the document produced would show that the complainant is the proprietor only from 2002 whereas the cheque relates to the year 2000, the court held that he has to prove his competency to file the complaint at the time of filing of the complaint and therefore acquitted the accused. 2. I do not want to be more elaborate in this matter for the reason that the accused has no case that the complainant 2 CRL.A.NO.1186/03 was not the proprietor, because in 313 questioning the accused’s version appears to be that a cheque had been issued and the amount had been paid, but cheque was not given back and so an action will not lie. I feel that the approach of the court below was not proper but, at any rate, in a criminal prosecution, there must be some materials to establish the competency of the person to file the complaint. It has to be considered along with the case of the defence when it is before the court. Therefore, I am inclined to grant an opportunity to the complainant to establish his case with the materials available or with the additional materials that can be produced. 3. In the result, the order of acquittal passed by the trial court is set aside and the matter is remitted back to the court below for a fresh disposal after affording equal opportunities to the complainant as well as the accused to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in 3 CRL.A.NO.1186/03 accordance with law. The parties are directed to appear before the court below on 11.8.2009. M.N. KRISHNAN, JUDGE cl 4 CRL.A.NO.1186/03 5 CRL.A.NO.1186/03