IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 CRL.A.No. 962 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.261/2004 Dated 24/05/2004 ST.9/1999 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... APPELLANT: COMPLAINANT. ------------------------------------------- M/S.MANAPPURAM GENERAL FINANCE AND LEASING AND LEASING LTD. BROTHERS COMPLEX, NAIKKANAL, THRISSUR 1. BY ADV. SRI.V.J.MATHEW SMT.BABY SONIA RESPONDENTS: ACCUSED AND STATE. --------------------------------- 1. RAMAKISHNAN K.M. KANNANCHIRA HOUSE, BRAHMAKULAM P.O. THAIKKAD, GURUVAYUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.N.SREEKUMAR SRI.K.MANOJ CHANDRAN R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON 19/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 962 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 9 of 1999 on the file of the Chief Judicial Magistrate Court, Thrissur against the order of acquittal of the accused under Section 255(1) Cr.P.C. dt. 16.7.2003. That was a case filed by the complainant against the first respondent herein for the offence punishable under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. The complainant leased out a Temp Trax vehicle to the accused on 28.4.1996. The accused had to pay Rs.12,216/- per month for 48 months as rentals. The accused committed default except for 7 months. When an amount of Rs.1,21,373/- became due and payable to the complainant, the complainant demanded the same and the accused came to the office of the complainant and issued Crl.A. No. 962 of 2004 2 a cheque for Rs.1,21,373/- dt.15.4.1998. On presentation, the cheque was dishonoured for insufficiency of funds and was returned to the complainant on 30.4.1998. The complainant issued a statutory notice to the accdused on 12.5.1998, which was received by the accused on 16.5.1998. But he did not pay the amounts or send any reply. 3. In the Chief Judicial Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to P12 were marked. On the side of the accused, DW1 was examined and Exts.D1 and D5 series were marked. The learned Chief Judicial Magistrate, on considering the evidence, found that the the complainant has not succeeded in establishing its case against the accused and the accused was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal, the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the court below thoroughly erred in finding that the accused has issued a blank Crl.A. No. 962 of 2004 3 cheque for the sanction of the loan and the court considered only the oral evidence given by the accused regarding the issuance of Ext.P4 cheque. The learned counsel for the appellant further submitted that the court below ought not have found that the cheque was issued by the accused as security towards future liability and that the court below ought to have found that Ext.P4 cheque was issued by the accused for the balance amount due from him and not as a security. The learned counsel further submits that the court below ought to have found that the accused has issued the cheque for the balance amount which is due from him after sale and repossession of the vehicle. The learned counsel for the first respondent supported the judgment of the court below. 6. The Legal Officer and Power of Attorney holder of the complainant Company was examined as PW1. He deposed that the complainant is a Public Limited Company and that Ext.P1 is the Power of Attorney executed in his favour. Ext.P2 is the copy of the Resolution and Ext.P3 is the loan agreement entered into between the Crl.A. No. 962 of 2004 4 complainant and the accused. PW1 stated that only seven instalments were paid and there was default. Thereafter that the accused was asked to clear the dues and as per the request the accused came to the company on 15.4.1998 and issued Ext.P4 cheque for Rs.1,21,373/- He also proved Ext.P5 memo and Ext.P6 intimation to show the dishonour of the cheque for insufficiency of funds in the account of the accused. Ext.P7 is the copy of lawyer notice dt.12.5.1998, Ext.P8 is the acknowledgment card and Ext.P9 is the postal receipt. Considering the dates of Exts.P4 to P9, the presentation of the cheque, the sending of notice and the filing of the complaint on 26.6.19986, are all within the period specified by the Negotiable Instruments Act. 7. In cross examination, PW1 deposed that the vehicle was re- possessed by the complainant within ten months after giving notice to the accused and the vehicle was sold in public auction for an amount of Rs.1,80,000/- and that the amount was adjusted towards the balance amount in the account of the accused. PW1 has not stated about the Crl.A. No. 962 of 2004 5 date of public auction and the date of adjustment of the same amount in the account of the accused. In the complaint nothing is stated about re-possession of the vehicle, sale of the vehicle and about the adjustment of sale price in the account. The learned counsel for the appellant submitted that all these details are contained in the accounts maintained by the complainant company and that an opportunity may be given to the complainant to produce those documents before Court so as to avoid doubts created by the non-production of the documents and for that purpose the case may be remanded to the court below for fresh consideration. Considering the facts and circumstances of the case, I am of the view that in the interests of justice that prayer for remand has to be allowed. In these circumstances, I am not going into the other merits of the case. 8. Accordingly this appeal is allowed. The judgment of acquittal of the accused in S.T.No. 9 of 1999 on the file of the Chief Judicial Magistrate Court, Trichur under Section 255(1) Cr.P.C. is set aside and the case is remanded to the court below for Crl.A. No. 962 of 2004 6 fresh disposal in accordance with law after giving sufficient opportunity to both sides to adduce further evidence. Both parties are directed to appear before the court below on 5.1.2011. Send back the records to the court below immediately. (M.L. JOSEPH FRANCIS) Judge tm