IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 22ND JULY,2011 / 31ST ASHADHA ,1933 CRL.A.No. 1591 of 2004 -------------------------------- (LEAVE GRANTED AS PER ORDER DTD.28.9.2004 IN CRL.L.P.NO.604 OF 2004) (AGAINST THE JUDGEMENT IN ST.2618/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM) .................... APPELLANT(S)/COMPLAINANT: --------------------------------------------- MURALEEDHARAN, S/O. SATHYAVATHI AMMA, KAYAPPANCHERI HOUSE, PAMBADI POST, THIRUVILLWAMALA THRISSUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, K.S. MANIYAN NAIR, S/O. RAMAN NAIR, MANI MANDHIRAM, MANGALAM, LEKKIDI, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS(S): ACCUSED AND STATE: ---------------------------------------------------------- 1. ARAVINDAKSHAN, S/O. PARUKUTTY AMMA, KEEZHILLATH MATATHIL, MANISSERY POST, THRIKKANGODE AMSOM, OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.RAGHU PRADEEP NAIR FOR R1 SRI.K.A.SREEJITH FOR R1 BY PUBLIC PROSECUTOR FOR R2 SRI.JAIBY PAUL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/7/2011 , THE COURT ON THE SAME DELIVERED THE FOLLOWING:- V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1591 of 2004 ---------------------------------------- Dated this the 22nd day of July, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Cr.P.C. by which the accused is acquitted of the charge under Section 138 of the N.I.Act wherein the allegation is that the cheque, which covers an amount of Rs.1,70,250/-, was dishonoured. 2. This Court, by order dated 28.9.2004 in Crl.L.P.No.604 of 2004, granted leave and thus, on the basis of such order, the above appeal is preferred by the complainant. 3. Heard counsel for the appellant and I have also perused the judgment of the trial court as well as the evidence and other materials on record. 4. The case of the complainant is that himself and the accused entered into an agreement on 27.5.1999 for the purchase of 1.20 acres of CRL.A.NO.1591 of 2004 :-2-: property belonging to the accused and an advance amount of Rs.1,25,000/- was given by the complainant on that day and subsequently, the agreement was not performed and therefore, according to the complainant, as agreed by the accused, as per the terms contained in the agreement, he had issued a cheque dated 13.3.2000 for an amount of Rs.1,70,250/-. According to the complainant, the said cheque, when presented for encashment, was dishonoured as there was no sufficient fund in the account maintained by the accused and the amount covered by the cheque has not been paid in spite of the statutory notice issued by the complainant and received by the accused. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, the appellant/complainant approached the Judicial First Class Magistrate Court, Ottappalam whereupon cognizance was taken for the offence under Section 138 of the N.I.Act and instituted S.T.No.2618 of 2000. During the trial, though the complainant himself was not examined, PW1 was examined for and on behalf of the complainant and produced Exts.P1 to P8 documents. Though no witness was examined from the side CRL.A.NO.1591 of 2004 :-3-: of the defence, Ext.D1 was produced and marked. After considering the available materials and evidence on record, the learned Magistrate has found that the evidence of PW1 is not sufficient to prove that the accused has issued Ext.P1 cheque in favour of the complainant for discharging any legally enforceable debt. Accordingly, the learned Magistrate found that the accused is not guilty under Section 138 of the N.I.Act and thus, he is acquitted. 5. Learned counsel for the appellant vehemently submitted that though the original complainant was not examined, on the basis of Ext.P1 Power of Attorney, PW1 was examined and he had deposed in favour of the complainant and in terms of the averments contained in the complaint, but the learned Magistrate miserably failed to act upon such evidence as well as the documentary evidence, produced in support of the case of the complainant. Learned counsel strenuously submitted that PW1 is a person, who was available along with the complainant, at the time of execution of Ext.P7 agreement and hence, the evidence of PW1 can be legally acted upon and therefore, the finding of the learned Magistrate is factually CRL.A.NO.1591 of 2004 :-4-: incorrect and legally unsustainable. 6. I am unable to sustain the above contention. The learned Magistrate has assigned several reasons in support of his findings and the order of acquittal. Going by the judgment of the trial court and the submission of the learned counsel, it appears that the claim of the complainant regarding the liability of the accused due to the complainant, for which the cheque was issued, is based upon Ext.P7 agreement. When PW1 was examined, he had deposed that he did not see the execution of Ext.P7, but he has claimed that he had seen only the payment of advance amount. As rightly pointed out by the learned Magistrate, the presence of the complainant was absolutely necessary, to advance the defence of the accused through effective cross-examination of the complainant. The learned Magistrate has specifically found that regarding the place of employment of the complainant, there is no consistent version or explanation. Whichever may be the place of employment of the complainant, no evidence is adduced to show that he is unable to appear before the court and to give evidence. While appreciating the evidence of CRL.A.NO.1591 of 2004 :-5-: PW1, the learned Magistrate has observed that though in the affidavit filed in lieu of chief examination, PW1 has no case that he had witnessed any of the transaction in the case, during the cross-examination, he had stated that he had collected the details of the case from the complainant and the complainant told him that the cheque was given by the accused towards repayment of advance amount. From the above, it is crystal clear that what all stated by PW1 is only hearsay and he has no direct knowledge regarding the transaction. It is also clear that the complainant has miserably failed to prove Ext.P7 agreement legally and factually and thereby, he failed to establish the liability of the accused to the complainant for which the alleged cheque was issued by the accused. Therefore, neither Ext.P7 nor Ext.P2 has got any legal sanctity. If that be so the position and the evidence on record, I find no reason to interfere with the finding of the learned Magistrate and no ground is made out to interfere with the order of acquittal recorded by the trial court. CRL.A.NO.1591 of 2004 :-6-: In the result, this Criminal Appeal is devoid of any merit and accordingly the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1591 of 2004 :-7-: V.K.MOHANAN, J. CRL.R.P.No. 69 OF 2001 ORDER Dated:23.6.2011 CRL.A.NO.1591 of 2004 :-8-: