IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 CRL.A.No. 1045 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CC.208/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... APPELLANT(S): COMPLAINANT: -------------------------- K.O.MATHEW, KALLIKANATHU NIBIN VILLA, CHENNITHALA VILLAGE. BY ADV. SMT.S.K.DEVI RESPONDENT(S): ACCUSED: ----------------------- 1. P.M.EAPEN, AGED ABOUT 73, S/O. P.K.MATHEW, DIRECTOR AND CHAIRMAN, ZAMBEZI CHAIN STORES LTD., KALOOR, ERNAKULAM. 2. GEORGE K.KORAH, AGED ABOUT 53, S/O. V.M.KORAH, EXECUTIVE DIRECTOR, ZAMBEZI CHAIN STORES LTD., KALOOR, ERNAKULAM. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE FOR R1 & R2 SRI.VIVEK VARGHESE P.J. FOR R1 & R2 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. A.No.1045 of 2004 ------------------------------------------------- Dated this the 29th day of September, 2011 JUDGMENT The appellant is the complainant in CC.No.208 of 2001 on the file of the Judicial Magistrate of the First Class-I, Chengannur. As he is aggrieved by the order dated 14.10.2003, issued by the learned Magistrate, acquitting the accused u/s.255(1) of Cr.P.C., he preferred this appeal, challenging the above order. 2. The case of the complainant is that, accused Nos.1 and 2 are the Chairman and Executive Directors of Zambezi Chain Stores Private Ltd, Ernakulam and they are the officials signatories of the company and they are responsible for all the day today affairs of the company including the financial transaction. It is the further case of the complainant that the accused issued a cheque bearing No.3295626 dated 20.1.2001 for Rs.1,20,250/- and when the said cheque presented for encashment, it was returned unpaid showing the reason exceeds arrangements and the accused has not paid, the amount covered by the cheque in spite of a statutory notice and therefore, the accused has committed the offence punishable Crl. A.No.1045 of 2004 2 u/s.138 of NI act. With the above allegation, the complainant approached the Judicial First Class Magistrate Court-I, Chengannur, by filing a complaint whereupon cognizance was taken for the offence u/s. 138 of the NI Act and instituted CC No.208/2001. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P10. From the side of the defence, DW1 was examined and produced Exts.D1 to D7. After considering the entire evidence and materials, the trial court found that the complainant is not succeeded to prove that the cheque was issued for the discharge of a legally enforcible debt and accordingly, found the accused is not guilty and consequently, he is acquitted u/s.255(1) of Cr.P.C. It is the above finding and order of acquittal, challenged in this appeal. 3. I have heard Smt.S.K.Devi, learned counsel for the appellant and, Sri. Jaccob Varghese, Senior counsel for the respondents/accused and the learned Public Prosecutor for the State. 4. The specific case of the complainant is that towards the discharge of the liability due to the complainant, the accused issued Ext.P1 cheque, which when presented for encashment, was dis-honoured and thereby committed the offence u/s.138 of Crl. A.No.1045 of 2004 3 the NI Act. The specific case of the defence taken by the accused is that the complainant with the connivance of the formal Managing Director of the company, one Annies Mathew and her husband Mathew Chandy, committed serious foul plays in the account of the company, who transferred the share amount to loan account without the permission of the Board of Directors. It is also the case of the defence, that the complainant was the accused in a Food Adulteration case and while so, he demanded post-dated cheques for the amount of his share in the company and on his demand two post dated cheques were given as security and Ext.P1 is one among such post dated cheque given to the complainant. It is the further case of the defence that subsequently, the Board of Directors of the company decided to issue share certificate for the remaining amount of Rs.2,45,250/- and to get back the post dated cheques from the accused. But the complainant has not returned the cheques. In the light of the above rival pleadings and in the light of the findings of the court below, especially in the light of the materials and evidence referred to by the learned Magistrate, the question to be considered is whether the learned Magistrate is correct and justified in his finding that the complainant has Crl. A.No.1045 of 2004 4 failed to prove the case against the accused beyond reasonable doubt. 5. In paragraph 15 of the trial court judgment, the learned Magistrate has specifically found that, when PW1 was cross examined, he had deposed that it was not the accused, who received the amount. On the basis of the above admission of the complainant according to the learned Magistrate, the same is sufficient to cast doubt regarding the very basis of the case of the complainant. When DW1 was examined, he had deposed in support of the defence version, which evidence has already mentioned in paragraph 13 of the impugned judgment and hence, I am not proposed to repeat the same. Contemporary documents, Ext.D3 to D5, fully support and substantiate the above version of DW1. Ext.D4 is copy of the letter dated 3.1.2001 issued by the accused addressing the complainant on the basis of Ext.D3 resolution of the accused company. In the said letter it is informed the complainant that share certificate No.0239 dated 29.12.2000 for 2452 shares at the rate of Rs.100/- each, and the complainant further requested not to present the cheque Nos.3295624 and 3295626 for Rs.1,25,000/- and Rs.1,20,250/- respectively which issued to him as security and Crl. A.No.1045 of 2004 5 further requested to return the same for cancellation. The learned Magistrate has rightly refused to act upon Ext.D4 but has positively found that the contents of D3 cannot be ignored. Ext.D3 is the resolution of the accused company, item No.7 in Ext.D3 resolution details with the two post dated cheques on the basis of which Ext.D4 letter was sent. On the basis of the above contemporary documents, the learned Magistrate has found that the complainant received two post dated cheques for Rs.1,25,000/- and Rs.1,20,250/- a total sum of Rs.2,45,250/-. Thus, according to the learned Magistrate on analysing Ext.D3, with other evidence, the defence case is probable. According to me, the facts proved by the defence in support of their defence version, especially, the failure on the part of PW1 to depose regarding the exact date regarding the borrowal of amount which he alleged and on his positive admission that the amount was not received by the accused, would show that the accused has succeeded in rebutting the presumption and the case of the defence is more probable. 6. In this juncture, it is also relevant to note that after having appreciated the entire evidence of the prosecution as well as the defence and by assigning cogent and acceptable Crl. A.No.1045 of 2004 6 explanation and in his judicial discretion, the learned Magistrate has opted to accept the version of defence and rejected the case of the complainant as he failed to prove the allegation beyond reasonable doubt. The appellant further failed to make out any compelling circumstances or substantial reason to interfere with the order of acquittal recorded by the learned Magistrate, so as to disturb the double presumption that available in favour of the accused, through the order of acquittal recorded by the trial court. In the result, I find no reason to interfere with the finding of the learned Magistrate as well as the order of acquittal recorded in favour of the accused. The appeal is dismissed, accordingly. V.K.MOHANAN, JUDGE. pm