IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 CRL.A.No. 1148 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.152/2003 Dated 01/07/2003 CC.11/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT/COMPLAINANT: -------------------------------- P.V.ANILKUMAR, S/O.VENUGOPAL, PANDIMACKAL HOUSE, PONKUNNAM, KOTTAYAM DISTRICT. BY ADV. SRI.V.C.JAMES RESPONDENTS/ACCUSED: ------------------------------ 1. M/S.VALLAT PLASTICS REPRESENTED BY ITS MANAGING PARTNER, RAJESH VALLAT, AGED 36 YEARS, S/O.HARIDAS, VALLATTIL HOUSE, MUNDAKAYAM. 2. RAJESH VALLAT, S/O.HARIDAS, VALLATTIL HOUSE, MUNDAKAYAM. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal No.1148 of 2003 ========================== Dated this the 10th day of April, 2008 JUDGMENT The complainant in a prosecution under Section 138 of the Negotiable Instruments Act has preferred this appeal challenging the order of acquittal of the respondents herein. While acquitting the accused the trial court held that the complainant had failed to establish his case satisfactorily. 2. Having heard learned counsel for the appellant and the respondents, I am satisfied that the impugned order is liable to be set aside. 3. The case of the complainant was that accused No.2 in his capacity as the Managing Partner of M/s.Vallat Plastics (accused No.1) borrowed Rs.3,00,000/- from him in January 2000. Accused No.2 had issued Ext.P1 cheque dated May 25, 2000 in discharge of the said debt. But the cheque was dishonoured, when it was presented for encashment, due to insufficiency of funds in the account of the accused. Complainant issued statutory demand notice to the two accused which were of course received by them but no reply was sent by Crl.A.No.1148/2003 2 any one of them nor did they pay off the liability. Hence the complaint. 4. The complainant was examined as PW1 and his witnesses were examined as PWs.2 and 3. Exts.P1 to P10 were marked on his side. Ext.D1 was marked on the side of the accused though no witness was examined. 5. The learned Magistrate raised the following point for consideration: Whether complainant could prove that the accused committed the offence under Section 138 of the Negotiable Instruments Act? 6. In the course of the discussion of the evidence adduced by the complainant, the learned magistrate found that the signature in Ext.P1 cheque was that of accused No.2. It was also found that the cheque had been dishonoured due to insufficiency of funds in the account of the accused. It was also held by the learned Magistrate that the complainant had issued statutory demand notice to both the accused and that they had failed to respond to the same. But the learned Magistrate took the view that the complainant had admitted that he did not Crl.A.No.1148/2003 3 possess any landed property and also that he had taken loans from some others for the purpose of his “slaughter tapping business”. Therefore it was not believable that he would have been in a position to lend Rs.3,00,000/- to the accused, it was held by the court below. 7. As rightly pointed out by the learned counsel for the complainant the learned Magistrate had totally lost sight of the provisions contained in Section 118 and 139 of the Act. In this context learned counsel has invited my attention to the decision of the Supreme Court in K.N.Beena v. Muniyappan and another (2002 SCC (Criminal) 14). 8. Learned counsel had taken me through the depositions of the witnesses particularly that of PW1. I have also perused the other relevant materials on record. It has to be noticed that the complainant had issued statutory demand notice to the firm as well to its Managing partner (accused No.2). If in fact the firm had a case that accused No.2 had no authority to borrow any money on behalf of the firm, the natural response would have been to deny the liability through a reply notice. The failure on the part of accused No.2 to respond to the demand Crl.A.No.1148/2003 4 notice will go a long way to show that there is considerable force in the contention raised by the complainant that he had satisfactorily discharged his burden and that presumption available under Section 139 should have been drawn in his favour. 9. Significantly accused No.2 had not disputed his signature in Ext.P1 Cheque. In his 313 statement the case set up by accused No.2 was that he had borrowed Rs.1,25,000/- from one Gopi. At that time he had handed over two blank signed cheques to Sri.Gopi, who had launched a prosecution against him utilising one of the two cheques. In the said case he was found guilty and convicted and sentenced. Copy of the said judgment was produced. The accused further contended that the other signed blank cheque leaf might have been obtained by the complainant from Mr.Gopi for the purpose of launching the present prosecution against the firm and himself. I do not propose to make any comment on the tenability of this contention in view of the order that I propose to pass. 10. Learned counsel for the accused makes an impassioned plea to afford a further opportunity to the accused, Crl.A.No.1148/2003 5 if the order of acquittal is being set aside. In any view of the matter, I have no hesitation to set aside the order of acquittal. I do so. 11. The case is remitted to the trial court for fresh disposal in accordance with law. It will be open to the parties to adduce further evidence if so advised. The learned Magistrate shall dispose of the case as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on June 16, 2008. Learned counsel for the accused submits that his client would co-operate with the trial of the case. The above submission is recorded. The criminal revision petition is allowed as above. The Registry shall send back the records to the trial court forthwith. A.K.BASHEER,JUDGE dvs