IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CRL.A.No. 690 of 2002() ------------------------------------- ST.483/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT(S): COMPLAINANT. -------------------------- A.J.AUGUSTINE, EDAYOTTIL HOUSE, P.O.VENGANELLUR, CHELAKKARA, TRICHUR. BY ADV. MR.V.G.ARUN RESPONDENT(S): ACCUSED AND STATE. ---------------------------- 1. K.C.JACOB, KONALI PUDUCHIRA HOUSE, P.O.CHUGATHARA, NILAMBUR, MALAPPURAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. MR.K.M.SATHYANATHA MENON FOR R1 BY PUBLIC PROSECUTOR MR.PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.690 OF 2002 ------------------------------ Dated this the 22nd day of May, 2009 JUDGMENT This appeal is preferred against the judgment of the Judicial First Class Magistrate –II, Trichur in S.T.No.483/1999. It was an action under Section 138 of the N.I.Act. The trial court found against the complainant and dismissed the case. The complainant has come up in appeal on special leave. 2. Heard the learned counsel for the appellant as well as the respondents. The question that arises for determination is whether the trial court was justified in dismissing the complaint (2) whether the matter requires interference at the hands of this Court. 3. Points 1 and 2: It is the case of the complainant that the accused had borrowed a sum of Rs. One lakh on 24.8.1997 and towards the discharge of the liability, he had issued a cheque on 12.12.1997 from the Casino Hotel at Trichur. When the cheque was presented for encashment, it was returned with the endorsement of insufficiency of funds and thereafter on Crl.A.690/02 2 complying with the statutory requirements, prosecution has been launched. From the reply notice, the contention of the accused appears to be that he had only borrowed a sum of Rs.30,000/= and at that time had given blank signed cheques which had been utilised by the complainant to file a false case. 4. The trial court mainly relied upon the documents – Exts.D1 and D2 and the evidence of DWs 1 and 2 to arrive at a decision that the case set up by the accused is more probable and acceptable. It has to be remembered that the case developed through Exts.D1 and D2 and through DWs 1 and 2 is to the effect that there was a mediation by a panchayat member as the accused had borrowed money from large number of persons. It is contended that in that meeting, it was submitted by the complainant that the amount due to him is Rs.35,000/= and it was further confirmed in the second meeting with the accused. The court accepted that documents and the evidence of DWs 1 and 2 to arrive at a decision to acquit the accused. At the outset, I may like to point out the case projected by Exts.D1 and D2 and DWs 1 and 2 had not been suggested at all to Pw1 when he was in the Crl.A.690/02 3 box and therefore, is totally taken by surprise regarding such a defence. Ext.D1 document was not sought to be summoned, but it was produced voluntarily by DW1 and he would submit that the accused had requested him to produce any document, if available. Ext.D1 does not contain the signature of anybody. Admittedly, the maker or the alleged scribe of Ext.D1 namely Premkumar though summoned, has not been examined. So, it was not proper on the part of the court below even without giving opportunity to the defacto complainant to rely upon Ext.D1 and to arrive at a decision against him. It is also the case that one witness, namely P.K. Abdulla Haji, had obtained a power of attorney from the accused for the sale of the property in order to distribute the assets among the creditors of the accused. He may be also a relevant witness. Though cited, had not been examined. 5. So, in order to accept the case of the accused, there must be some more evidence and at the same time, whether such evidence can be accepted has to be analysed only after giving an opportunity to the defacto complainant to explain the same. Therefore, the procedure adopted by the court below does not appear to be correct and therefore, the Crl.A.690/02 4 judgment passed by the court below requires interference. I set aside the judgment and remit the case back to the same court for further consideration in the light of the observations made above. In the result, the appeal is allowed and the order of acquittal passed by the court below is set aside and the matter is remitted back to the trial court for fresh consideration after affording further opportunity to the accused to examine the other witnesses cited by him and after finishing of the evidence which he wants to adduce, opportunity be given to the defacto complainant to adduce further evidence and in case of necessity, further opportunity again be given to the accused to give further evidence in the matter and thereafter the court shall consider the matter in the light of the materials available and dispose it of in accordance with law. The parties are directed to appear before the court below on 02.07.2009. M.N. KRISHNAN, JUDGE cl Crl.A.690/02 5 M.N. KRISHNAN, J. CRL.A.NO.690 OF 2002 JUDGMENT 22nd day of May, 2009 Crl.A.690/02 6