IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 CRL.A.No. 965 of 2001() ----------------------- (ST NO.2577/97 OF THE JFCM, TIRUR) APPELLANT: ----------- SODARAN, S/O.KUNHIKKORU, NAYARU VEETTIL, VETTOM AMSOM, PADIYAM DESOM, P.O. VETTOM. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS: ------------- 1. KARAPPAN, S/O. KARAPPU, AVANAKKAT HOUSE, PARASSERI, THALAKKAD AMSOM, (PO), B.P. ANGADI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI C.M.NAZAR. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) FOR R.1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/5/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A.N0.965 of 2001 ---------------------------------------------- Dated, 22nd May, 2008. JUDGMENT This Crl.Appeal is at the instance of the complainant in S.T.No.2577/97 in the court of the Judicial First Class Magistrate, Tirur. By judgment dated 14-6-2001, the trial court acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The appellant herein who is the complainant in the above case challenged the judgment of the court below by which the Ist respondent herein is acquitted. 2. The above complaint is filed alleging that the accused had borrowed an amount of Rs.1,00,000/- from the complainant and towards the repayment of the said amount, the accused had issued a cheque dated 23-2-1997 to be drawn in the account No.13 in the Tirur Urban Co-operative Bank B.P. Angadi Branch. When the complainant presented the cheque in his bank, namely, the South Malabar Gramin Bank, Koottayi Branch where he is having an account and sent it for collection through B.P.Angadi Branch of Canara Bank, the cheque was returned to CRA 965/01 -:2:- the complainant through the Canara Bank B.P.Angadi Branch on 21-4-97 and from his bank on 29-4-97. According to the complainant, he had caused to send a lawyer notice to the accused demanding repayment of the money. The accused accepted the notice on 1.5.97. On receipt of the notice the accused neither sent a reply nor the amount was paid and hence, the complaint filed before the court below. 3. On receipt of summons and on appearance the accused was released on bail. Copies of records were furnished to him under section 207 Cr.P.C. and the accused pleaded not guilty when the particulars of offence read over to him as a result of which the trial was further proceeded. PWs 1 and 2 were examined from the side of the prosecution and Exts. P1 to P6 were marked. Questioned the accused under section 313 of Cr.P.C. and he himself was examined as DW-1. Finally, the trial court on finding that the accused is not guilty, he was acquitted under section 255 (1) Cr.P.C. It is the above judgment of acquittal challenged in this appeal. 4. I have heard the counsel for the appellant as well as the CRA 965/01 -:3:- counsel for the Ist respondent and the learned Public Prosecutor. 5. Ext.P1 is the cheque in question which is dated 23.2.97. Ext.P2 is the cheque returned memo dated 23-2-97. According to the counsel for the appellant, there is endorsement on the back side of Ext.P1 cheque which contained the signature of the bank manager dated 21-4-97 and according to the counsel for the appellant, the complainant came to know regarding the dishonour of the cheque only on 21-4-97 and hence a lawyer notice was sent on 29-4-97 and therefore, the notice was sent in time and the complaint was also filed within the statutory period and therefore the finding arrived at by the court below is not correct. To substantiate the contention, the counsel very much placed reliance upon the testimony of PW-2 Bank Manager of South Malabar Gramin Bank, Koottayi branch. In his chief examination, he had stated that the seal which contained in Ext.P1 cheque leaf is that of the bank. It is also stated that the date shown as 21-4-97 is the date on which the cheque was returned to the party and therefore, according to the CRA 965/01 -:4:- counsel for the appellant, notice was sent in time. 6. Per contra, the learned counsel for the Ist respondent submitted that Ext.P2 cheque return memo contained an endorsement to the effect showing date as 11-4-97 at 12.30 p.m. This is the actual date of receipt of the cheque in question and therefore, if that date is taken for calculating the period for sending notice, it can be seen that lawyer notice is out of time. According to the learned counsel for the Ist respondent, the above endorsement is not explained by the complainant. The learned counsel invited my attention to the deposition of PW-2. In the cross examination of PW-2, it is stated that he is the branch manager of Koottayi branch from 1998 May onwards. He had stated that the signature contained in the cheque is not that of his. He was not asked to produce any document. It is also stated by him that sufficient records are available in the bank regarding the return of the cheque. He had also stated that if Ext.P2 memo has been received in his bank, there will be sufficient records in that aspect. Records with respect to the negotiation of the cheque to the concerned party will also be CRA 965/01 -:5:- there in the bank. On the basis of the deposition of PW-2, counsel for the Ist respondent submitted that the complainant has miserably failed to advance evidence, especially, when the documentary evidence which are available in the bank. He had also submitted that when Ext.P2 memo contained an endorsement regarding the time and date, it is for the complainant to explain the same. 7. The trial court formulated the main issue as to whether the accused had issued a cheque to the complainant for the repayment of money legally due to the complainant and whether the cheque was returned when presented for encashment for insufficiency of funds in the account of the accused and the accused has failed to repay the money even after statutory notice. As revealed from the judgment, the main contention raised on behalf of the defence is that the complainant had failed in sending statutory notice to the accused within 15 days after the dishonour of the cheque and for filing complaint under section 138 of the N.I. Act. The trial court found that Ext.P2 memo produced is the dishonour memo issued from CRA 965/01 -:6:- the Tirur Urban Co-operative Bank which is dated 23-2-97. No other memo dated 21-4-97 issued from any other bank was produced or marked before court. Therefore the trial court found that there is nothing to show that dishonour of the cheque was came to the notice of the accused only on 21-4-27. The attempt from the side of the complainant to establish that the complainant came to know the dishonour only on 21-4-97 through the deposition of PW-2 bank manager, but according to the trial court, PW-2 is not the manager during the relevant time. Based upon the deposition of PW-2, the trial court found that though document was available in the bank regarding dishonour and also the communication, no attempt was made by the complainant to produce the documents and proved that the cheque was returned only on 21-4-97. According to the trial court, the position would have been different if the complainant has produced and marked the relevant records available in the or has examined the manager of the South Malabar Gramin Bank who was in charge of the manager of the bank on 21-4-97 and who has written the date and signature on the reverse side of CRA 965/01 -:7:- Ext.P1 cheque. Therefore, the court below is of the view that the complainant has failed to prove that he has sent notice to the accused within 15 days from the date of his knowledge regarding the dishonour of the cheque and accordingly, the court below came to the conclusion that the complainant has failed to prove the guilt of the accused beyond any reasonable doubt. 8. I have gone through the records and also the averments advanced from both sides. The cheque in question is for an amount of Rs.1,00,000/-. It is the case of the appellant that he came to know regarding the dishonour of the cheque only on 21-4-97 through Ext.P2 dated 23-2-97. Going by the endorsement contained in Ext.P1 cheque leaf it can be seen that there is signature and seal of the Manager of the bank showing the date as 21-4-97. PW-2, the bank manager also stated that the cheque in question was returned on 21-4-97. If that be so, it can safely be taken that the statutory notice was sent within time. But in Ext.P2 cheque return memo, as mentioned earlier, there is an endorsement as pointed out with CRA 965/01 -:8:- respect to the date as 12.30 p.m. on 11-4-97. Counsel for the Ist respondent submitted that even if the date is taken as the date of knowledge regarding the dishonour of the cheque, statutory notice is out of time and no complaint will lie. But no attempt was made either by the complainant or by the accused to explain regarding those endorsement. Going by the evidence of PW-2, it can be seen that though the cheque in question was returned on 21-4-97, no supporting documentary evidence are adduced to show that the cheque in question was returned on 21-4-97. During his cross examination, PW-2 said that sufficient documents are available in the bank to show the details regarding the return of the cheque in question. 9. Having regard to the entire facts and circumstances involved in the case, I am of the view that an opportunity must be given to both the parties to adduce evidence from their side to substantiate their respective contentions on the basis of which the court can come into a correct finding regarding the actual date of return of the cheque in question and the date on which the complainant came to know the dishonour of the CRA 965/01 -:9:- cheque. Hence, the matter is liable to be remanded back to the trial court for fresh disposal. 10. In the result, the judgment of the trial court is set aside and the matter is remanded back to the trial court for fresh disposal after giving sufficient opportunities to the parties for adducing evidence to substantiate their respective pleadings and contentions. The trial court is directed to take up the matter for fresh disposal on receiving the file from the Registry of this Court. V.K.MOHANAN, JUDGE. kvm/- CRA 965/01 -:10:- V.K.MOHANAN, J. CRL.A.NO.965 OF 2001 Judgment Dated:22-5-2008