IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH OCTOBER, 2008 /14TH ASWINA, 1930 CRL.A.No. 421 of 2001 (A) (CC.803/1998 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM) .................... APPELLANT/COMPLAINANT IN CC NO.803/98: ------------------------------------------------------- RETNAKAR, MANAGING PARTNER, M/S.GEE & JAY CLOTHINGS, KOTTAYAM, REP. BY HIS POWER OF ATTORNEY HOLDER JOHNY SEBASTIAN, S/O.SEBASTIAN CHUMMAR, RESIDING AT MAPPILAPARAMPIL HOUSE, KURAVILANGADU.P.O., KOTTAYAM DISTRICT. BY ADV. SRI.FEBIN J.VELUKARAN SRI.ANIYAN JOSEPH RESPONDENTS/ACCUSED IN C.C.NO.803/1998: ---------------------------------------------------------- 1. SHYFUDDEEN, M/S.CASTLE THE FASHION PEOPLE, CHINNAKKADA, KOLLAM-1. 2. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.BIMAL K.NATH FOR R1 SRI.S.R.VINOD FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 421 of 2001 --------------------------------------------- Dated this the 6th day of October, 2008 J U D G M E N T This appeal is filed by the complainant challenging the order of acquittal passed by the court below under Section 255(1) of the Code of Criminal Procedure in C.C.No.803 of 1998 on the file of the Judicial Fist Class Magistrate Court-III, Kottayam. 2. The case of the appellant/complainant is that the first respondent/accused issued a cheque dated 9.10.1997 drawn on the State Bank of Travancore, Anandavalleeswaram Branch, Kollam for an amount of Rs.20,000/- towards the discharge of the debt due to the complainant. According to the complainant, when the cheque was presented for collection through the State Bank of Travancore, Kanjikuzhy Branch, Kottayam, the cheque was returned on 4.3.1998 with an endorsement 'Refer to drawer'. As the cheque was dishonoured and returned, the complainant caused to send a lawyer notice to the accused intimating the receipt of dishonour memo Crl.A. NO.421 of 2001 :-2-: from the bank and also demanding to pay back the amount. According to the complainant, in spite of the notice, no amount was paid and hence, a complaint was filed alleging offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act') against the accused and the court took cognizance upon the complaint and instituted C.C.No.803 of 1998. On appearance of the accused, particulars were read over to him who pleaded not guilty which resulted in further trial during which PW1 was examined from the side of the complainant and Exts,P1 to P9 were marked. On the side of the accused, DW1 was examined and Exts.D1 and D2 were marked. The trial court formulated two issues for its consideration and finally came into a conclusion that the accused was not guilty for the offence under Section 138 of the N.I.Act and accordingly, he was acquitted under Section 255(1) of the Cr.P.C. It is the above order of acquittal, challenged in this appeal. 3. The complainant is represented by the Power of Attorney Holder who is examined as PW1. Ext.P1 is Crl.A. NO.421 of 2001 :-3-: the Power of Attorney. Ext.P2 is the cheque issued by the accused. Ext.P3 is the dishonour memo received by the complainant from the State Bank of Travancore, Anandavalleeswaram Branch. Ext.P4 is the lawyer notice issued to the accused and Ext.P5 is the postal receipt. Ext.P6 is the acknowledgement card. The relevant page of the cheque book register of S.B.T., Anandavalleeswaram Branch is produced and marked as Ext.P7 and Ext.P8 is the cheque returned register. The accused admitted the execution of the cheque by admitting his signature on Ext.P2 cheque. The case put forward by the accused is to the effect that during the transaction between the accused and the complainant, the payment is being made only through cash or draft and the same is not effected through cheque. Ext.P2 cheque is given only as a security. Though the accused stated that the cheque was issued as a security, according to the court below, he did not produce any evidence to substantiate the same and the court had further held that the presumption under Sections 118(a) Crl.A. NO.421 of 2001 :-4-: and 139 of the N.I.Act is in favour of the complainant and the accused has not rebutted the same and accordingly, the court below found that Ext.P2 cheque was issued by the accused for consideration and in discharge of the liability. Since the accused has not filed any appeal against the above finding of the court below, I need not go into the merits of the conclusions arrived by the court below on the above point. 4. The court below was of the opinion that the complainant had not produced any evidence to establish the ingredients and liability under Section 138 of the N.I.Act. The case of the complainant is that Ext.P2 cheque was returned as there was no sufficient fund in the account of the accused to honour Ext.P2 cheque. It is beyond dispute that Ext.P2 cheque was dishonoured due to the reason 'Refer to drawer' as evidenced by Ext.P3 memo. The court below had already found that the complainant has neither examined the Bank Manager nor produced the certified copy of the ledger to prove that there was no sufficient fund in the account Crl.A. NO.421 of 2001 :-5-: of the accused to honour Ex.P2 cheque. After stating the essential ingredients of Section 138 of the N.I.Act, the court concluded that in the present case, there is no material or evidence to show that Ext.P2 cheque was returned for insufficiency of fund in the account of the accused. In order to attract the penal liability, the complainant has to establish that the cheque in question is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. In the present case, the case of the complainant is that the cheque in question was dishonoured for the reason that there was no sufficient fund in the account of the accused to honour the cheque. On examination of the materials and evidence on record, it could be seen that the complainant has miserably failed to establish the above ingredients of Section 138 of the N.I.Act and therefore, the trial court correctly concluded that there was no Crl.A. NO.421 of 2001 :-6-: evidence to attract Section 138 of the N.I.Act as the complainant had not proved the insufficiency of fund in the account of the accused to honour the cheque. Though PW1 was examined and certain documents were produced, none of those evidences are sufficient to hold that Ext.P2 cheque was dishonoured for want of sufficient fund in the account of the accused. It is pertinent to note that from the evidence adduced by the complainant, especially in the light of Exts.P2 and P3, it can be seen that the reason for dishonour of cheque is other than what stated in Section 138 of the N.I.Act. Therefore, the complainant has miserably failed to discharge the duty in making out a case against the accused in terms of Section 138 of the N.I.Act. Thus, nothing is brought out to the notice of this Court to take a different view based upon the available materials and therefore, this Court cannot interfere with the order of acquittal passed by the court below. 5. In the light of the above facts and circumstances and the discussion, no ground is made Crl.A. NO.421 of 2001 :-7-: out to interfere with the order of acquittal passed by the court below and the appeal is devoid of merit. Accordingly, this Criminal Appeal is dismissed. V.K.Mohanan, Judge MBS/ Crl.A. NO.421 of 2001 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. 421 OF 2001 ------------------------------------------- J U D G M E N T DATED:6-10-2008 Crl.A. NO.421 of 2001 :-9-: