IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 CRL.A.No.196 of 2007(D) ----------------------------- ORDER IN CRL.L.P.7/2007 Dated 22/01/2007 CC.1407/2003 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOTHAMANGALAM. .................... APPELLANT/COMPLAINANT: --------------------------------- ANTONY JOSEPH, S/O.JOSEPH, AGED 50 YEARS, ARACKAL HOUSE, RAMALLOOR, KOTHAMANGALAM. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS: ACCUSED & STATE: ----------------------------------------- 1. JOSE. J. PULICKEL, PULICKEL HOUSE, RAMALLOOR, KOTHAMANGALAM P.O., ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PEEYUS A.KOTTAM PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.196 of 2007 ------------------------------------------------ Dated this the 8th day of January, 2008 JUDGMENT The complainant in C.C.1407/03 on the file of the Judicial First Class Magistrate's Court, Kothamangalam, a complaint filed under the N.I. Act complaining of commission by the first respondent of an offence punishable under Section 138 of the N.I. Act is the appellant. The court below after considering the case on merits in the light of the evidence adduced which consisted of oral testimony of PW1 and DWs.1 and 2 and documentary evidence Exts.P1 to P12 and D1 to D4 acquitted the accused under Section 255(1) Cr.P.C holding that Exts.P1 to P3 cheques issued by the first respondent to the appellant are not supported by consideration. 2. It was the contention of the first respondent/accused that there existed a Crl. Appeal No.196 of 2007 -2- partnership firm run under the name and style “Seon Enterprises” which was engaged in the business of money lending; that there were altogether eleven partners in the said firm of whom one is the first respondent who was the Managing Partner and one other partner is the appellant; that a consensus was arrived at between the partners whereby all of them agreed to retire from the partnership receiving their share of investment so that the first respondent can continue the business in sole proprietorship; that accordingly the original of Ext.D4 agreement was to be executed by the partners that though several partners signed in the said agreement, two of the partners were not signatories and the mediator who was the party No.12 in the said agreement was in custody of original of Ext.D4 to obtain the signatures of all partners; that Ext.D4 shows that party Nos.5 and 6 are not Crl. Appeal No.196 of 2007 -3- signatories thereto that therefore, Ext.D4 cannot be stated to be an agreement whereunder all partners have relinquished their rights in favour of the first respondent who was the Managing Partner as all the other partners have not joined in execution of Ext.D4 and that therefore, the consideration under Exts.P1 to P3 cheques have failed and no amount is therefore, payable under those cheques. It was the said contention that was upheld by the learned Magistrate which resulted in the order of acquittal of the first respondent/accused. 3. It is contended before me by the counsel for the appellant that party Nos.5 and 6 have also signed in the original agreement which was in custody of party No.12; and that, that was also produced by the appellant as Ext.P11, though it so happened that the last page of the agreement was omitted to be Crl. Appeal No.196 of 2007 -4- produced in the process of docketing the document for production before court and a petition filed thereafter to reopen the case for further evidence and to receive the last page of Ext.P11 was however, dismissed by the court below and that resulted in the acquittal of the accused and the order of acquittal in the circumstances is unsustainable. 4. Counsel for the first respondent contends that even in the event of the last sheet of Ext.P11 document also being brought before court, the position is not going to improve as party Nos.5 and 6 had actually not signed in the document and that their signatures were being forged and the document was being produced in court. 5. In view of the dispute as regards due execution of Ext.P11 agreement even if the last sheet of Ext.P11 agreement which was subsequently produced in court is allowed to Crl. Appeal No.196 of 2007 -5- be accepted and incorporated with Ext.P11, the dispute cannot be adjudged by this Court as proof of execution of the said document by party Nos.5 and 6 also requires to be had in the nature of the contentions of the parties. 6. In the result, I set aside the order under appeal and allow the appeal by way of remand directing the court below to receive the last page of Ext.P11 produced along with C.M.P.2463/06 and incorporate it with Ext.P11 and allow the parties to adduce further evidence in proof of due execution of Ext.P11 by party Nos.5 and 6 as well. The parties shall appear in the court below positively on 07/02/08. Transmit the records back to the court below forthwith so as to enable the case being taken up in the court below on 07/02/08. K.P.BALACHANDRAN, JUDGE kns/-