IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 CRL.A.No. 617 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.156/2004 Dated 22/03/2004 CC.296/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT: COMPLAINANT: -------------------------- AJMAL. A., GLOBAL VILLAGE, MEDIA SYNDICATE, T.C.14/1923, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. SAI RAVINDRAN, D/O. K.S. PILLAI, PROPRIETORIX, M/S. ABI'S ADS, T.C.41/2516, MAUSAM, THOTTAM, MANACAUD P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.B.JAYASURYA FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON 30/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 617 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 296 of 2002 on the file of the Judicial First Class Magistrate Court - V, Trivandrum against the acquittal of the first respondent herein. The first respondent herein was the accused in that case, which was filed by the complainant alleging the commission of offence under Section 138 of the N.I. Act. 2. The case of the complainant briefly is as follows. The complainant is running the firm called 'Global Village Media Syndicate' and the accused is running a firm under the style 'M/s.ABI'S ADS'. The accused issued a cheque for Rs.1,52,725/- in favour of the complainant on 23.11.1998. The complainant forwarded the cheque for collection through the Bank of Baroda. The cheque was returned with an endorsement 'funds Crl.A. No. 617 of 2004 2 insufficient' in the account of the accused. The complainant issued a notice to the accused on 6.1.1999. The accused evaded the notice and it was returned to the counsel on 16.1.1999. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P4 were marked. On the side of the accused DW1 was examined and Exts.D1 to D7 were marked. The learned Magistrate, on considering the evidence, found that the complainant did not succeed in establishing his case beyond reasonable doubt and therefore the accused was found not guilty of the offence under Section 138 of the N.I. Act and he was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that execution of Ext.P1 cheque is admitted by the accused and the accused has no Crl.A. No. 617 of 2004 3 case that the amount is paid within the statutory period. Therefore the court below went wrong in acquitting the accused. The learned counsel for the appellant further submitted that both parties were having a series of business transaction and that the cheque dt.31.12.1998 was issued with respect to an entirely different transaction. The learned counsel for the first respondent supported the judgment of the court below. 6. The Proprietor of the complainant firm was examined as PW1. He deposed that the accused is conducting an advertising agency and that an advertisement given by the Travancore Devaswom Board was published in the news papers outside Kerala through the accused and towards the amount due to the complainant Company of Rs.1,52,725/- the accused issued Ext.P1(a) cheque, which was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo. 7. The complainant sent lawyer notice, which was not accepted by the accused. Ext.P3 series are copy of the lawyer notice and Crl.A. No. 617 of 2004 4 returned notice. Ext.P4 is the bank extract. When cross examined, PW1 stated that the advertisement was published in 'Dinarani' and 'Eenadu' daily and invoice was given to the accused. Ext.D1 is the invoice given to the accused by PW1. He deposed that there were transactions between the accused and the complainant and no advertisement was published other than the present one. PW1 deposed that the accused had borrowed Rs.76,000/- from him as personal loan and that was repaid by him. PW1 stated that he does not know whether the accused had received amount from the Devaswom Board as per Ext.D1. PW1 deposed that it is not correct to say that the accused gave two other cheques and that two cheques were not given splitting the amount covered by Ext.P1(a) cheque. 8. The accused was examined as DW1. DW1 deposed that he obtained an advertisement of Travanore Devaswom Board through the complainant and published in Tamil daily and one Telugu daily. PW1 deposed that the complainant agreed to give 10% commission on the Crl.A. No. 617 of 2004 5 bill amount, that the bill amount will be collected by the accused from the Devaswom Board and will be handed over to the complainant and out of that amount, commission will be given to the accused. Ext.D2 is the delivery note in respect of Ext.D1 invoice. DW1 deposed that he paid the bill amount deducting 10% commission and service tax and payment for Rs.1,52,725/- was made by Ext.P1(a) cheque and that cheque was not presented as there was delay for getting the payment from the Devaswom Board and so DW1 wanted the complainant to hold on the cheque. But the complainant wanted immediate payment and so the complainant wanted to split up the payment by issuing two cheques, one for Rs.76,000/- and another for Rs.76,725/- Accordingly the accused issued two such cheques. 9. DW1 deposed that when he gave those two cheques, Ext.P1(a) cheque issued for the full amount was not returned to him and the complainant agreed to return Ext.P1(a) cheque on encashment of the cheque for Rs.76,000/- and that they will give a receipt and Crl.A. No. 617 of 2004 6 will return Ext.P1(a) cheque. The complainant encashed the cheque for Rs.76,000/- on 4.1.1999 and when the accused demanded back Ext.P1(a) cheque, the complainant did not return it. Then DW1 sent a notice to the complainant to give the receipt and to return Ext.P1(a) cheque. Ext.D3 series are copies of the notice and acknowledgment card. DW1 deposed that when the complainant did not send any reply, the accused took a Demand Draft for Rs.76,725/- and approached the complainant and wanted to give a receipt of Rs.76,000/- and return Ext.P1(a) cheque. But they did not accept the Demand Draft and they did not return Ext.P1(a) cheque or gave any receipt. Ext.D4 is the copy of the Demand Draft. Ext.D5 is the copy of the requisition for the Demand Draft. Thereafter the Demand Draft amount was transferred to Fixed Deposit account of the accused. DW1 deposed that the complainant has filed a suit against him as O.S.No. 432 of 2002 for realisation of the entire amount. DW1 deposed that there was no other transaction between him and the complainant other than this. Crl.A. No. 617 of 2004 7 10. PW1 admits that the cheque for Rs.76,000/- issued by the accused in favour of the complainant was encashed on 4.1.1999. There is no evidence to show that there was any transaction between the accused and the complainant other than this transaction. PW1 has not adduced any evidence to show that the accused borrowed Rs.76,000/- from him and it was repaid by the accused. From the evidence on record, it can be inferred that the complainant received Rs.76,000/- from the accused and that amount was not deducted when the complainant issued Ext.P3 notice on 6.1.1999. The case of the accused that the amount of Rs.1,52,725/- was split up into two and the accused issued two cheques, one for Rs.76,000/- dt. 31.12.1998 and another cheque for Rs.76,725/- dt.15.1.1999 appears to be more probable than the case of the complainant. The cheque for Rs.76,000/- was encashed by the complainant, but the complainant has not encashed the cheque for Rs.76,725/- dt.15.1.1999. In the above circumstances, as held by the learned Magistrate, the accused cannot be Crl.A. No. 617 of 2004 8 convicted for the offence under Section 138 of the N.I. Act based on Ext.P1(a) cheque. 11. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm