IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CRL.A.No. 105 of 2000() ----------------------- CC.631/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... APPELLANT: COMPLAINANT: ---------------------------------------- K.K. HAMEED, RESIDING AT THOUFEEQU MANZIL EZHUPUNNA SOUGH P.O. CHERTHALA BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENTS: ACCUSED: -------------------------------------- 1. BEST FOOD CORPORATION, KARUVELIPADI, KOCHIN-5. 2. ANU.M. SAMSUDEEN, MANAGING EXECUTIVE, BEST FOOD CORPORATION, KARUVELIPADI, KOCHI-5. 3. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENRAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 105 of 2000-A - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of February, 2008. Judgment This appeal is directed against the judgment of acquittal passed by the trial court in a prosecution under Section 138 of the Negotiable Instruments Act. The complaint filed by the appellant was dismissed by the trial court holding that Ext.P1 cheque was not issued from the account maintained by the drawer thereof, and that there was no evidence to show that accused No.2 was authorised to draw the cheque in question. It was also held that Ext.P1 cheque was not issued in discharge of any legally recoverable debt. 2. It is vehemently contended by Ms.Sabina learned counsel for the appellant that the court below was not justified in accepting the defence case that accused No.2 was not authorised to draw Ext.P1 cheque on behalf of the firm M/s. Best Food Corporation who was arraigned as accused No.1 in the complaint. According to the learned counsel the firm had been maintaining business relations with the complainant for several years and he was made to believe that accused No.2 was the Managing Executive with authority to issue cheque and other documents on behalf of the firm. 3. In order to consider the tenability of the above contentions it is necessary to refer to the case of the complainant before the court below. It was contended by the complainant that accused No.2 had purchased Cuttle fish (Koonthal) from him during October 1993 on behalf of the firm. A sum of Rs,1,09,560/- remained outstanding from the accused being the value of the fish purchased by them from Crl.A.105/2000 2 the complainant. Ultimately on January 4, 1995 at about 4 pm. accused No.2 came to the office of the complainant and handed over a cheque dated January 5, 1995 for the above sum of Rs.1,09,560/- which was drawn on Federal Bank, Ernakulam Broadway Branch. But when the cheque was presented for encashment it was dishonoured with the endorsement “refer to drawer”. Though a statutory notice was issued by the complainant demanding payment of the amount due, the liability was not discharged. In fact the notice was returned by the Postal Department with the endorsement “addressee continuously absent”. Hence the complaint. 4. Before the trial court the complainant was examined as Pw.1 The Post Master and Post Man of the local Post Office were also examined on the side of complainant as Pws.2 and 3. Exts.P1 to P6 were also marked in the case. The defence set up by accused No.2 was that he had nothing to do with the firm in question He had no authority to issue Ext.P1 cheque either. But according to accused No.2 the complainant and some goondas had come to the Company and forcibly obtained Ext.P1 cheque from him. He was compelled to put his signature in the cheque, though he had specifically told the complainant that he had no right or authority to issue such a cheque. Apart from the cheque, the complainant had also forced him to sign in the letter head of the Company in which something was written as dictated by the complainant. Accused No.2 further contended that he had told the complainant that his uncle Habeeb was the Proprietor of the firm and that he had no right in the business. 5. In this context it is pertinent to note that the complainant Crl.A.105/2000 3 while he was examined as PW.1 was specifically asked whether he knew that one A.P.Habeeb was the Proprietor of accused No.1 establishment. The complainant had pretended ignorance. It was however admitted by Pw.1 that he had not issued any notice to the said Habeeb when Ext.P1 cheque was dishonoured. Yet another question put to Pw.1 in the course of his cross-examination was whether he was aware that Ext.P1 cheque was issued from the account of Habeeb. The answer given by Pw.1 to the above question was also in the negative. Reference has been made to the above answers given by Pw.1 only to highlight the fact that even after the complainant knew the defence of the accused, no steps were taken by him to call for the records from the Bank or to examine either the Manager or any other responsible officer of the Bank. If the complainant was certain that accused No.2 was authorised to operate the bank account on behalf of accused No.1 establishment, it would not have been difficult at all to prove the said case by calling for the records from the Bank. 6. In this context it may also be noticed that respondent No.3 had been described in the complaint as “Managing Executive”. No record has been produced to show nor was there any averment in the complaint that a Managing Executive had authority to issue cheque on behalf of the firm. It is contended by Ms.Sabina that the accused had not adduced any evidence to show that Ext.P1 cheque was obtained form him by the complainant and his goondas under threat, duress or coercion. There is some force in the above contention. But still the learned Magistrate in my view was justified in believing the version given by the accused, particularly since the initial burden cast on the Crl.A.105/2000 4 complainant was not discharged. In the absence of any material to show that accused No.2 had issued the cheque from the account maintained either by him or the firm in his capacity as the authorised signatory, the court below was justified in holding that the complainant had failed to prove that the offence under Section 138 had been committed by the accused. 7. Having heard learned counsel for the appellant and having perused the entire materials available on record, I do not find any reason to interfere with the order of acquittal passed by the learned Magistrate. Appeal fails and it is accordingly dismissed. A.K. Basheer Judge. an.