IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 CRL.A.No. 451 of 2004(A) ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.159/2004 Dated 03/03/2004 CRA.130/2003 of ADDL.SESSIONS COURT, KOTTAYAM .................... APPELLANT(S): RESPONDENT/COMPLAINANT: ---------------------------------------------------------------- K.T. JOSEPH, AGED 54, S/O. THOMAS, KUNNEL HOUSE, MUTTAPPALLY P.O., ERUMELY. BY ADV. SRI.JOSEKUTTY MATHEW RESPONDENT(S): APPELLANTS/ACCUSED 1TO 3 & STATE: ----------------------------------------------------------------------------------- 1. ABRAHAM @ KUTTIACHAN, S/O. JOSEPH, THANNICKAL HOUSE, KANJIRAMATTOM, CHENGALAM EAST VILLAGE, KOTTAYAM DISTRICT, PALLICKATHODU POLICE STATION. 2. JANCY ABRAHAM, W/O. M.J. ABRAHAM MUTHUKUNNEL THANNICKAL, KANJIRAMATTOM P.O., CHENGALAM EAST VILLAGE, KOTTAYAM DIST., PALLICKATHODU POLICE STATION. 3. JOSE ABRAHAM, S/O. AVIRA, PATHICKAL HOUSE, KANJIRAMATTOM P.O., KOTTAYAM DISTRICT NOW RESIDING AT NELLILPPARA P.O., NALUMUKKU JUNCTION KATTAPPANA POLICE STATION, IDUKKI DISTRICT. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JAMES MATHEW KADAVAN FOR R1 TO 3 SRI.SAJAN MANNALI FOR R1 TO 3 GOVT. PLEADER SMT. S. HYMA FOR R4 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN,J. --------------------------------------- Crl.A. No. 451 of 2004 ---------------------------------------- Dated this the 9th day of December, 2011 JUDGMENT The complainant in C.C. No. 222/2000 on the file of Judicial First Class Magistrate, Kanjirappally is the appellant. Respondents 1 to 3 are accused 3 to 5. The 1st accused is a partnership firm of which the 2nd accused is the Managing Partner. Second accused is reported dead. Originally there were only three accused. During the pendency of the proceedings respondents 2 and 3 were arrayed as accused 4 and 5 as per an order in Crl.M.P. 10/2001 issued under Section 319 of Cr.P.C. The trial court after trial found all the accused guilty. Respondents 1 to 3 were sentenced to simple imprisonment for three months and ordered to pay `. 50,000/-(Rupees Fifty thousand only) each as compensation to the appellant. 1st accused was sentenced to a fine of `.5,000/- (Rupees five thousand only). 2. Against the above conviction and sentence, respondents Crl.A. No. 451 OF 2004 -2- 1 to 3 preferred Crl.A. No.130/2003 before the Sessions Judge, Kottayam. Additional Sessions Judge, to whom the appeal was made over, by the impugned judgment dated 06.11.2003 arrived at a finding that the appellant failed to establish that respondents 1 to 3 were either partners or they were responsible for the conduct of the business of the 1st accused firm. Consequently the appeal was allowed and respondents 1 to 3 were acquitted. Against the judgment of acquittal this appeal was preferred. Recurringly, there is no representation for the appellant. 3. I have gone through the judgment impugned. Ext.P12 is the partnership deed. Lower appellate court found that as per Ext.P12, the 1st respondent (3rd accused) is not a partner. Therefore, the lower appellate court was justified in acquitting the 1st respondent. Though there is no finding that as per the partnership deed respondents 2 and 3 are partners, the appellate court had found that in the complaint there is no whisper that the respondents 3 and 4 are responsible for the conduct of the business of the 1st accused firm. The evidence of the appellant Crl.A. No. 451 OF 2004 -3- that respondents 2 and 3 are responsible for the conduct of the business of the 1st respondent firm is not supported by the pleadings. Therefore, on that count itself acquittal is not liable to be interfered. The appellant got respondents 2 and 3 arrayed as accused 4 and 5 on the basis of a suit instituted by South Indian bank against the firm for realisation of the money due to the bank from the firm. That may not be a sufficient evidence to come to a conclusion that respondents 2 and 3 are responsible for the conduct of the business of the firm. Civil liability and criminal liability are entirely different. It s also pertinent to note that the appellant has no case that any notice as contemplated under Section 138(b) of the Negotiable Instruments Act was caused to respondents 2 and 3. Therefore, for want of notice under Section 138(b) of the Negotiable instruments Act also, the respondents 2 and 3 are entitled to acquittal. 4. In the above circumstances I find that the lower appellant court was justified in interfering with the conviction and sentence as against the respondents 1 to 3. I find no reason to Crl.A. No. 451 OF 2004 -4- come to a divergent conclusion. The appeal is devoid of any merit. Accordingly it is dismissed. P.S. GOPINATHAN, JUDGE. Kp/-