IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 299 of 2003() ----------------------- ST.34/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- E.K.GEORGE, S/O. KURIYPEE, RESIDING AT SANKAR NIVAS, DHARMADESAM LANE, MALLOOR ROAD, VANCHIYOOR P.O., THIRUVANANTHAPURAM BY ADV. MR.P.B.ASOKAN RESPONDENT(S): APPELLANT AND STATE: ----------------------------------------------------------------- 1. SRI.K.N.BABY, AGED 41 YEARS, S/O. NARAYNAN, KALLUMMUNDIYIL HOUSE, MUNITHUNDU, ADIMALI P.O., IDUKKI DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.S.U.NAZAR, MR.REFEECK CHENNARA. R2 BY PUBLIC PROSECUTOR MR. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 299 OF 2003 = = = = = = = = = = = = = = = Dated this the 24th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-V, Thiruvananthapuram in S.T.34/01. It is the case of the complainant that the accused had borrowed a sum of Rs.1,15,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of funds insufficient. Thereafter a statutory notice was issued which returned unclaimed and thereafter prosecution has been launched. It appears to be the defence that while the wife of the accused was undergoing treatment in a hospital for cancer the accused had borrowed a sum of Rs.15,000/- from the complainant who is a money lender and at that time had issued a promissory note as well as a cheque for Rs.15,000/- written only in figures and not in words. The said cheque had been misused Crl.A. No. 229 OF 2003 -:2:- and the case has been filed. PW1 is the complainant. He had deposed about the transaction as alleged in the complaint. He had deposed that the accused had brought the cheque written and signed it before him and he had also requested the complainant not to present the cheque for two months and that was the delay in presenting the cheque for encashment. The suggestion is that a cheque written in figure of Rs.15,000/- has been corrected as Rs.1,15,000/-. The learned Magistrate also found it to be possible and probable that the figures Rs.15,000/- had been corrected as Rs.1,15,000/-. I had meticulously perused the cheque. Every person has got a different style of writing. It can be seen that the entire writing is made by the same person. The only suspicious character thereunder is that there is a full stop after the printed word 'Rupees'. The '1' in Rs.1,15,000/- has gone to the left side on that point and therefore the learned Magistrate jumps to the conclusion that there is material alteration. I am afraid that it should not have reached such a conclusion with the naked eye comparison. Therefore that finding has to be vacated. Crl.A. No. 229 OF 2003 -:3:- 2. Similarly there is a definite case that the accused in 313 questioning stated that he has issued a notice to the Bank to stop the payment on 12.12.1997 alleging that the cheque leaves had been lost. The present cheque is dated only 30.12.97. If he had already issued a registered letter on 12.12.97 certainly one can visualize the correctness or the truthfulness of the whole story. For this purpose an application was filed by the complainant after the 313 questioning to recall the Manager and adduce evidence. Unfortunately the Court below rejected that request. It was improper. It should have gone a long way to find out the truthfulness of the case. Therefore I feel opportunities can be given to both the sides to adduce further evidence in support of their respective contentions in order to enable the Court to arrive at a right decision. Therefore the order of acquittal passed is set aside and the matter is remitted back to the trial court with a direction to permit both the parties to adduce additional evidence and produce documentary evidence in support of their respective contentions and then dispose of the matter Crl.A. No. 229 OF 2003 -:4:- afresh in accordance with law. Parties are directed to appear the Court below on 8.10.2009. M.N. KRISHNAN, JUDGE. ul/- Crl.A. No. 229 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 229 OF 2003 = = = = = = = = = = = J U D G M E N T 24th August, 2009