IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 CRL.A.No. 243 of 2000() --------------------------------- CRL.M.C.NO.1521/2000 OF THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD ............................. APPELLANT/COMPLAINANT ---------------------------------------- SUGUTHAN, PROPERIETOR, M/S. NILA ENTERPRISES, COURT ROAD, HARIKKAR STREET, PALGHAT. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENTS/ACCUSED & STATE --------------------------------------------------- 1. M.K.SALIM, S/O.C.H.MAMMOOTY, PARTNER, C.H.COMPLEX, G.B.ROAD, PALGHAT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.SALIM SRI. M.K.SALIM FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.243 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May 2008 JUDGMENT This appeal against acquittal arises from a prosecution under Section 138 of the Negotiable Instruments Act. By the impugned order, the learned Magistrate found respondent No.1/accused not guilty and acquitted him holding that there was no satisfactory evidence to show that Ext.P1 cheque was supported by consideration. 2. The case of the appellant/complainant who was stated to be the proprietor of M/S Nila Enterprises, was that the accused had borrowed a sum of Rs.55,000/- as a loan in November 1995. The accused had issued Ext.P1 cheque for Rs.60,000/- in discharge of the said debt which included the principal and interest. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued by the complainant, it was returned unserved. The accused did not discharge the liability. Hence the complaint. Crl.A.No.243 OF 2000 :: 2 :: 3. The complainant was examined as PW1. PWs2 and 3 were also examined on his side. Exts.P1 to P7 and Ext.X1 were also marked in the case. There was no oral or documentary evidence on the side of the accused. 4. The learned Magistrate, after considering the oral and documentary evidence on record, took the view that the case of the accused that he had borrowed a sum of Rs.5,000/- from the complainant was more probable especially, since no independent witness was examined by the complainant to show that he had lent a sum of Rs.55,000/- as alleged. But it is pertinent to note that the accused did not have a case that Ext.P1 cheque did not contain his signature. But, he admitted that he had borrowed money from the complainant. The learned Magistrate failed to take note of the fact that Ext.X1, ledger extract pertaining to the account of the complainant clearly revealed that a cheque for Rs.50,000/- issued by the complainant to the accused was encashed by the latter on November 20, 1995. The specific case of the complainant was that over and above the said sum of Rs.50,000/- which was paid through cheque, he had paid a Crl.A.No.243 OF 2000 :: 3 :: further sum of Rs.5,000/- as well to the accused. The evidence of PWs2 and 3 had not been considered by the learned Magistrate at all. It appears that the learned Magistrate was carried away by the alleged omission on the part of the complainant to produce the promissory note which the accused had executed at the time of the money transaction. The appellant has produced Annexures A and B documents which are the true photocopy of the relevant page of the pass book, and two other documents which according to him related to the above money transaction. 5. I do not propose to deal with those documents at this stage, in view of the order that I propose to pass in this case. In my view, the learned Magistrate had clearly overlooked the provisions contained in Sections 118 and 139 of the Act. He had also failed to notice that the accused had not adduced any rebuttal evidence in support of the contentions raised by him. Having regard to the entire facts and circumstances, I am satisfied that the order of acquittal is liable to be set aside. I do so. The case is remitted to the court below for fresh disposal in accordance with law. It will be open to both the parties to Crl.A.No.243 OF 2000 :: 4 :: adduce further evidence in the case, if so advised. The court below shall dispose of the case as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. (A.K.BASHEER, JUDGE) jes