IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 CRL.A.No. 2049 of 2005() ----------------------------------- ST.117/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... APPELLANT(S): COMPLAINANT. --------------------------------------------- M/S.HOUSE OF FOODS AND CHEMICALS (P) LIMITED, KANJIKODE, PALAKKAD BY VIJAYA KUMAR, MANAGING DIRECTOR HOUSE OF FOODS AND CHEMICALS (P), LIMITED, KANJIKODE, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): ACCUSED. ------------------------------------------ 1. K.G.CHERIAN, PROPRIETOR, ASHA ENTERPRISE ADOOR,R ESIDING AT KARINGIRAKKATU HOUSE, ADOOR, PATHANAMTHITTA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.P.M.KUNJIMOIDEENKUTTY, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SMT.ROOPREKHA D.KAMATH. R2 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.2049 of 2005 ---------------------------------------------------- Dated this the 9th day of August, 2011 Judgment The complainant has filed this appeal challenging the order of acquittal passed by J.F.C.M.Court-I, Palakkad. The complaint was filed under Section 138 of the N.I.Act. The case of the complainant is that a sum of Rs.75,169/- was due from the accused towards the value of the goods purchased by him and to discharge that liability Ext.P1 cheque was issued by the accused which on presentment was dishonoured due to insufficiency of funds. On receipt of the memo from the complainant's bank, notice was sent under proviso (b) to Section 138 of the N.I.Act. It was acknowledged by the accused, but the amount was not paid. The complainant got himself examined as P.W.1 and Exts.P1 to P5 were marked. One witness was examined as D.W.1 and Exts.D1 to D4 were marked on the side of the defence. 2. The learned Magistrate found that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable liability/debt. But the accused was acquitted on the sole reason that the statutory notice was not proved to have been sent within Crl.A.2049/05 2 15 days (as the law then stood) of the receipt of the intimation from the Bank regarding dishonour of the cheque. 3. The learned counsel for the complainant/appellant would submit that it was specifically stated in the complaint and in evidence that the intimation regarding the dishonour of the cheque was received by the complainant from his bank on 4.10.2002 and that fact was not challenged at all by the accused. But the learned Magistrate while disposing the case thought that the document to prove intimation given to the complainant should have been produced and that documentary evidence cannot be allowed to be substituted by oral evidence. Though it was not so stated by the learned Magistrate, the learned Magistrate was of the view that the document itself should have been produced. 4. Though an application was filed by the complainant to reopen the case under Section 311 Cr.P.C. to summon his banker to produce documents relating to the sending of intimation with regard to Ext.P1 cheque, that was not allowed by the learned Magistrate since the case was already posted for judgment. For that purpose, the learned Magistrate relied upon a decision of this Crl.A.2049/05 3 court in Sajeendran v. Thalakulathoor Grama Panchayat (2004(1) KLT 69). The learned counsel for the appellant has pointed out that aforesaid decision was overruled by the Division Bench in Sree Venkatadeswara Enterprises v. Rajasekharan Nair (2006(3) KLT 930). Since there was no case for the accused that the notice was not sent within 15 days as provided under proviso (b) to Section 138, the learned counsel submits that the complainant should not have been non-suited. However, since the complainant offers to produce the intimation received by him from the bank and if necessary to summon the bank officials also to prove that fact, it is just and proper that the case is remanded to the learned Magistrate for fresh disposal. 5. In the result, the impugned judgment is set aside and the case is remanded to the court below for fresh disposal. The Criminal Appeal is disposed of as above. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.2049/05 4 Crl.A.2049/05 5