IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 348 of 2003() ---------------------------------- CC.77/2002 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT(S): COMPLAINANT: -------------------------- LIJU MATHEW, VYPANA HOUSE, MUTTAMBALAM P.O., KOTTAYAM, REP. BY POWER OF ATTORNEY HOLDER, BIJU MATHEW, S/O. P.M.MATHEW, PAZHOOR HOUSE, PERUMPAIKAD P.O., KOTTAYAM. BY ADVS. MR.M.NARENDRA KUMAR MR.JOHN VARGHESE, ASSISTANT SG RESPONDENT(S): ACCUSED: ----------------------- K.S.SASIKUMAR, S/O. GOVINDA PANICKER, KOCHUPURACKAL, MADAPPALLY P.O., CHANGANACHERRY. ADV. MR.RAJEEV V.KURUP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 348 OF 2003 = = = = = = = = = = = = = = = Dated this the 11th day of June, 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-II, Kottayam in C.C.77/02. It was a case initiated u/s 138 of the Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.1,00,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with he endorsement of insufficiency of funds. After issuing statutory notice the prosecution has been launched. 2. On the other hand the defence appears to be that he had approached the complainant for a loan for the purpose of effecting repairs to the auto rickshaw of the accused and he had only 3½ sovereigns with him and therefore the complainant insisted for the issuance of a cheque and it is under that circumstances Ext.P2 cheque had been issued. In Crl.A. 348 OF 2003 -2- the trial court PW1 and DW1 were examined and Exts.P1 to P7 were marked. The Court below found that the evidence of PW.1 is not satisfactory to prove the case and therefore acquitted the accused under the provisions of law. It is against that decision the appeal is preferred. 3. Heard the learned counsel for the appellant and respondent in detail and also perused the records and evidence available. Admittedly PW1 is only the power of attorney holder. A reading of his evidence in the chief- examination does not divulge anything about his presence at the time of transaction. But in cross-examination questions had been put and answers had been elicited which would show that at the time of borrowal of the amount PW1 was present and he had witnessed the same. But he has stated that at the time of issuing the cheque his presence was not there. DW1 is a friend of the accused in whose auto rickshaw the engine was taken for repair. He would depose that he had accompanied the accused for the purpose of borrowing the amount. But at Crl.A. 348 OF 2003 -3- one place he would admit that Ext.P2 is the cheque given for the transaction. There is no descriptive details or materials available to consider whether it was a cheque for Rs.1,00,000/- that was issued as security for the transaction or it was only a mere blank signed cheque. I feel the matter requires reconsideration at the hands of the Court below. It is advisable that the complainant himself goes to the box and remove suspicion in the mind of the Court regarding his absence from the Court. He will be able to certainly speak better and his evidence can be tested by cross-examination as well. If the accused also wants to adduce further evidence the Court cannot permit him to do so. It is for him to decide whether evidence has to be adduced or not and if he choses to do so permit him to adduce evidence. Therefore the Crl.A. is allowed and the order of acquittal passed by the trial court is set aside with a direction to permit both the sides to produce documentary as well as oral evidence in support of their respective contentions and then the learned Magistrate is Crl.A. 348 OF 2003 -4- directed to dispose of the matter in accordance with law. The parties are directed to appear before the Court below on 23.7.2009. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 348 OF 2003 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 348 OF 2003 = = = = = = = = = = = J U D G M E N T 11th June, 2009