IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 238 of 2003() --------------------------------- CC.1070/1998 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT/COMPLAINANT ---------------------------------------- VENUGOPALA PILLAI, KOTTUR PUTHEN VEEDU, KARAVALUR- REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MOHANAN PILLAI, AMRUTHA NIVAS, KARAVALUR, PUNALUR. BY ADV. MR.V.G.ARUN MR.T.R.HARIKUMAR RESPONDENTS/ACCUSED AND STATE ----------------------------------------------------- 1. C. CHELLAPPAN, S/O. KOCHUKUNJU, PLAVILA VEEDU, KADUVAKUZHI, PUNALUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R1 BY ADV. MR.P.BHASKARAN, MR.K.SURESH BABU (PUNALUR). THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.238 OF 2003 ------------------------------ Dated this the 9th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in C.C.No.1070/1998 of JFCM-III, Punalur. It is the case of the complainant that the accused had borrowed a sum of Rs. Three lakhs from the complainant and towards the discharge of the liability had issued a cheque which when presented for encashment, returned with the endorsement of insufficiency of founds. 2. Notice was issued and action was initiated. The case of the defence appears to be that there was only a transaction for Rs.20,000 and Rs.10,000/= respectively i.e. Rs.20,000/= from one Sunil Kumar and Rs.10,000/= from PW1 and that Ext.P2 cheque was given as a security. It is also contended that the transaction had been closed and the cheque had not been returned and it is made use of for filing the complaint. In the trial court PWs 1 and 2 were examined, Exts.P1 to P7 and Exts.D1 and D2 were marked. A perusal of the judgment of the court below would reveal that the court found it difficult to 2 CRL.A.NO.238/03 accept the case in the backdrop of the non-examination of the complainant in the case. PW1 is none other than the elder brother of the complainant. The elder brother had executed a general power of attorney in favour of PW1. It is true that only if one is representing the other only as a power of attorney holder, one may not be able to let in evidence if he has no personal knowledge about the transaction. Now, as far as this case is concerned, PW1 would depose that at the time of borrowal as well as at the time of the execution of the cheque he was present along with his brother and he had witnessed the transaction and therefore, he is competent to speak about the transaction. The court below had relied upon Exts.D1 and D2 also. Exts. D1 and D2 are the two receipts executed by PW1. A reading of Exts. D1 and D2 would reveal that it is a transaction between PW1 and the accused and Sunil Kumar and the accused. Just because of those two receipts are there, one cannot jump to the conclusion that there was no other transaction. It should have been ideal and proper that the complainant himself would have mounted the box and faced the examination, so that both sides would 3 CRL.A.NO.238/03 have been in a position to elicit the fact which they want in support of their respective contentions. At that time it is seen from the evidence that the complainant was a probationer in a bank which disabled him to get leave. Certainly that stage is over and it is better and desirable that if he is put in the box and evidence is adduced, the matter can be sorted out with the materials. Therefore, I set aside the order of acquittal passed by the court below and remand the case back to the trial court with a direction to the learned Magistrate to permit the original complainant namely Venugopala Pillai to be examined as a witness. Needless to say that the accused also would be entitled to let in evidence and produce documents in case of necessity. Thereafter the matter be disposed of in accordance with law. The parties are directed to appear before the trial court on 20.7.2009. M.N. KRISHNAN, JUDGE cl 4 CRL.A.NO.238/03 M.N. KRISHNAN, J. CRL.A.NO.238 OF 2003 JUDGMENT 9th day of June, 2009 5 CRL.A.NO.238/03 6 CRL.A.NO.238/03