IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 841 of 2002(A) ------------------------ CC.812/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... APPELLANT: COMPLAINANT: -------------------------- A.K.MAHESAN, ATTUPURATHU VEEDU, WARD NO.9, AROOR-688 534. BY ADV. SRI.THOMAS JOSEPH RESPONDENTS: ACCUSED: ----------------------- 1. N.VIJAYAN, THEKKETTAM VEEDU, PALLITHODU P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.V.KUMARAN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.A.NO. 841 OF 2002 ======================= DATED THIS THE 9TH DAY OF JUNE 2009 JUDGMENT The appellant herein is the complainant in C.C.No.812/1998 on the file of the Judicial First Class Magistrate-II, Cherthala. The offence alleged against the respondent/accused is under Section Section 138 of the Negotiable Instruments Act. The learned Magistrate, after considering the evidence on record, acquitted the accused on the finding that the accused is not guilty which is challenged in this appeal. 2. Heard the learned counsel for the appellant. No argument was advanced by the learned counsel appearing for the respondent who is absent. 3. The case of the appellant/complainant is as follows:- The respondent/accused borrowed Rs.50,000/- from the appellant on 6-3-1998 and issued Ext.P1 cheque dated 6-5-1998. That cheque when presented for encashment was returned with the CRA.841/2002 -2- endorsement 'Per, pro, signature and seal required,Funds insufficient'. The appellant thereafter issued lawyer notice on 22-9-1998, copy of which is produced as Ext.P4 and the same was received by the accused on 24-9-1998 as revealed from the acknowledgment card, Ext.P6. The accused did not pay the amount nor sent any reply. Thereafter, the appellant filed complaint before the Judicial First Class Magistrate Court-II, Cherthala. The offences alleged against the accused are under Section 420 of the Indian Penal Code and Section138 of the Negotiable Instruments Act. The learned Magistrate after recording sworn statement of the complainant, taken cognizance of the case against the accused for the offence under Section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. Exts.D1 and D2 were marked during cross examination of PW1 on the defence side. Accused was questioned under Section 313 of Cr.P.C. 4. It is submitted by the learned counsel appearing for the appellant that the appellant/complainant has proved all the ingredients under Section 138 of the Negotiable Instruments Act CRA.841/2002 -3- and the finding of the learned Magistrate that the accused is not guilty has to be set aside. It is also submitted by the learned counsel that offence under Section 420 of I.P.C. are also proved and that an opportunity may be given to the appellant by remanding the case for fresh disposal in accordance with law. 5. I have gone through the evidence on record including the oral testimony of PW1 and the documentary evidence adduced in this case. During cross examination of PW1, the defence was denial of the entire transaction in between the complainant and the accused. It was contended that the accused had entered into an agreement with one Anthukka regarding the supply of shrimp meat to the tune of Rs.50,000/- and he has handed over a blank cheque to that Anthukka as a security for that amount. Though the accused supplied the entire meat as agreed, the transaction has not been settled so far. During 313 examination also, the same stand was taken by the accused. 6. The point to be decided is whether the complainant has established and proved all the ingredients to attract the offence under Section 138 of the Negotiable Instruments Act against the accused. To prove that aspect, the complainant has produced CRA.841/2002 -4- Ext.P1 cheque and also the dishonour memo marked as Ext.P2. To attract Section 138 of the Negotiable Instruments Act, the cheque drawn by a person on an account maintained by him and in that account for the discharge of the debt or liability, it was returned by the Bank when presented for encashment which according to the complainant in the present case was revealed from Ext.P2 dishonour memo for the reason of 'Per, Pro, Signature and seal required, Funds insufficient'. Thus it is evident from Ext.P2 dishonour memo that the cheque was drawn in the joint account and not in the account maintained by the accused alone and it was returned for the reasons that the signature of the joint account holder and the seal are required and also due to insufficiency of funds. The complainant without verifying about the joint account holder has proceeded to issue notice against the accused by issuing lawyer notice, copy of which is produced as Ext.P4 which was received by the accused as revealed from Ext.P6. Under Section 139 of the Negotiable Instruments Act, there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted by the drawer of the cheque. In CRA.841/2002 -5- the present case, the cheque was issued not in the account of the accused alone as revealed from the dishonour memo,Ext.P2. So, such a legal presumption cannot be availed by the complainant herein. The burden of proof on the part of the complainant has not been discharged by adducing satisfactory evidence before the lower court. In a prosecution where the cheque was drawn in the joint account of the accused, if both account holders were not arrayed as accused such a rebuttal evidence cannot be adduced by the accused. According to PW1, he has handed over Rs.50,000/- to the accused and has received Ext.P1 cheque from the accused then and there. It was done in the presence of some other persons whose names were specifically mentioned by him during the cross examination in the witness box. None of these persons were examined on the side of the complainant in spite of denial of the transactions made by the accused. The so-called Anthukka is known to the complainant and also to the accused. According to the complainant, he is working as the clerk of that Anthukka who is doing business in shrimp meat. The case of the accused that he has given a blank cheque to Anthukka regarding the supply of CRA.841/2002 -6- shrimp meat and in that transaction the bills produced as Exts.D1 and D2 were handed over to the complainant as the clerk of Anthukka. There was transaction between the accused and Anthukka is admitted by PW1. He has issued those receipts to the accused as clerk of Anthukka is also admitted. All these evidence on record have been considered by the learned Magistrate. 7. It is then submitted by the learned counsel for the appellant that an opportunity may be given to the complainant to examine the Bank Manager to prove that the account is operated by the accused and also to prove that who is the joint account holder. That submission of the learned counsel cannot be accepted at present in the light of Ext.P2 memo which would reveal that it was not in the account of the accused alone but in the joint account of another also. The oral evidence of the Bank Manager will not help the complainant to prove the ingredients of Section 138 of the Negotiable Instruments Act. Further, 11 years time has already over and a remand at this stage is not fair. 8. Considering all these aspects, I find that there is no CRA.841/2002 -7- ground to interfere with the findings of the court below as prayed for in this appeal. 9. In the result, this appeal is dismissed and the judgment dated 31-5-2002 is confirmed. No costs. M.C. HARI RANI JUDGE ks. CRA.841/2002 -8- M.C. HARI RANI, J. CRL.A. NO. 841 of 2002 JUDGMENT 9-6-2009