IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 CRL.A.No. 139 of 2004() -------------------------------------- CC.263/1999 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... APPELLANT(S): COMPLAINANT: --------------------------------------------- M/S. VERTEX SECURITIES LTD, THOTTATHIL TOWERS, 2ND FLOOR, MARKET ROAD, ERNAKULAM, REP. BY ITS SENIOR EXECUTIVE, SRI.K.J.THOMAS. BY ADV. SRI.TOMY SEBASTIAN RESPONDENT(S): STATE AND ACCUSED: ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUDEV P., M/S. MALABAR CONSULTANTS, REGENCY BUILDING, CALICUT-2. R1 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.139 of 2004 --------------------------------- Dated this the 22nd day of August 2011 J U D G M E N T The appellant company is the complainant before the court below, who filed complaint against the accused therein under Sec.138 of the N.I.Act. It was alleged that the complainant was doing the business as 'share broker' and that the accused was doing share business through that company and in the course of the business transactions accused had issued cheques in favour of the complainant company. The cheque in question in this case is dated 15.7.1996 drawn for Rs.40,000/- which on presentment was dishonoured on the ground of insufficiency of fund. On receipt of the statutory notice, the accused failed to pay the amount. Hence the complaint was filed. 2. The present Manager of the complainant company was examined as PW1 and Exts.P1 to P6 were marked. The Crl.A.No.139 of 2004 -: 2 :- accused got himself examined as DW1. 3. After analysing the evidence the learned Magistrate found that the accused could rebut the presumption under Sec.139 of the N.I.Act and also found that the complainant could not prove that Ext.P2 cheque was issued in discharge of a legally enforceable debt and thus the accused was acquitted. 4. It was contended by the complainant company that the finding entered by the learned Magistrate is incorrect. The contention that the signed blank cheque leaves were given to one Majo K. Antony cannot be accepted at all since the cheques were issued in favour of the complainant company. Majo K. Antony was the former Branch Manager. He does not gain anything by presenting the cheque through somebody else. Had it been issued in favour of the complainant company, the amount if at all realised would ultimately go to the company only and not to Majo K. Antony or to any other individual, the complainant/ Crl.A.No.139 of 2004 -: 3 :- appellant contended. 5. Though this case was taken up several times, learned counsel for the appellant has not turned up. Hence this Court proceeded to dispose of the matter. Sri.P.V.Kunhikrishnan, the learned counsel for the accused/ respondent has made his submission. Sri.Kunhikrishnan would draw the attention of this Court to the effect that there were altogether three cases filed by the very same complainant in respect of the three cheques alleged to have been issued by the accused in discharge of the debt mentioned in the respective cheques. This case as well as C.C.No.172/1999 which was the subject matter of Crl.A.No.191/2003 of this Court ended in acquittal under Sec.255 (1) Cr.P.C. whereas one case where the cheque amount was Rs.10,000/- ended in conviction (that is the subject matter of Crl.R.P.No.2947/2003). 6. The learned counsel for the respondent/accused would submit that it was admitted by PW1 that there were Crl.A.No.139 of 2004 -: 4 :- records relating to the amounts due to the complainant company but no such account was produced to prove that any amount was due from the accused to the complainant company. When Ext.P1 was issued PW1 was employed in the Ernakulam Branch of the complainant company. In other words, he had no direct knowledge regarding the transaction in respect of which Ext.P2 was stated to have been issued. The learned Magistrate would hold that the evidence given by PW1 is based only on hearsay information. Since the accounts have not been produced before the court the submission that PW1 had occasion to see the accounts cannot in any way come to the rescue of the complainant since the primary evidence, the accounts in question, were not produced before the court. That cannot be substituted by any oral evidence, that too, when PW1 has no direct knowledge regarding the same. It is inconceivable why the accounts relating to the transaction were not produced by the complainant. The fact that Ext.P1 bears Crl.A.No.139 of 2004 -: 5 :- the signature of the accused person would not tantamount to execution of Ext.P2 cheque. The court below was not inclined to accept the evidence of PW1 since with regard to the transaction in question he was a total stranger. In the absence of any other evidence the court below found no other alternative but to decide the case against the complainant. Since there is no other materials, this Court also cannot hold otherwise. Hence the judgment of acquittal cannot be reversed. In the light of what is stated above, the judgment of acquittal passed by the learned Magistrate is confirmed. The appeal is hence dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt