IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 CRL.A.No. 691 of 2001(C) ------------------------------------ CC.1200/1995 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT IN CRL. APPEAL/ COMPLAINANT IN C.C: ---------------------------------------------------------------------------- M/S. SEMIC ENGINEERS AND CONTRACTORS, XXXVI/1587, CORPORATION BUILDINGS, KALOOR, KOCHI-17, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JOHN THARIAN. BY ADV. SRI.JAIJI ITTEN.. IST RESPONDENT IN CRL.APPEAL/ACCUSED IN C.C./ 2ND RESPONDENT IN CRL.A: ---------------------------------------------------------------------------------------------------------------------- 1.` MRS. SUHARA HYDER, W/O. HASSANARKATH HYDORALI & D/O. MILAMPARAMBIL ABDULKHADER, CHAVAKKAD, AMOOR MANZIL, PUTHYAKAVU, MATHILAKAM.P.O., THRISSUR DISTRICT. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU, ADV. SRI.BABU KARUKAPADATH, ADV. SMT.M.A.VAHEEDA BABU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V. GIRI, J. ------------------------------- CRA.NO. 691 of 2001 --------------------------------- Dated this the 29th day of August, 2008 JUDGMENT The complainant in CC.No.1200/95 on the files of the JFCM Court-II Ernakulam is the appellant herein. The calendar case arose out of a complaint filed by the appellant herein alleging that the accused has committed an offence under section 138 of the Negotiable Instruments Act. At the conclusion of the evidence the accused was questioned under section 313 of the Cr.P.C. The court below went on to find that the complainant had no ample evidence to prove the guilt of the accused beyond reasonable doubt and accordingly acquitted the accused under section 255(1) of the Cr.P.C. The same has been challenged in this appeal. 2. The case of the complainant was that the accused had issued Ext.P1 cheque drawn on the Kaippamangalam branch of the Canara Bank on 15.11.1994 in favour of the complainant towards the consideration for the construction work of the accused. Later the cheque on presentation was dishonoured for CRA.691 /2001 2 want of sufficient funds. Though notice was issued, payment was not made and thereafter the complaint was lodged. The power of attorney holder of the complainant was examined as PW1. Exts.D1 to D14 were marked through PW1 himself as defence evidence. The stand taken by the accused was that Ext.D1 agreement was executed between the complainant company and the accused for the construction of a two storied residential building for the benefit of the accused. The agreement contemplated staggered payment of a total amount of Rs.4,20,000/-. The payment was to be made at different stages of the construction. It so happened the construction was not carried ourt in accordance with the plan supplied. In fact there was diminution in the total plinth area contemplated in the plan. Ext.D3 to D14 receipts will show that an amount of Rs.1,85,000/- was paid by the accused to the complainant company. Specific suggestion in this regard made in the cross examination of PW1 elicited the above mentioned facts. The specific case of the accused was that Ext.P1 cheque was issued only as a security and therefore it was not supported by consideration. CRA.691 /2001 3 3. Having gone through the evidence in the case, one aspect which is to be noted straight away is that the complaint and Ext.P3 notice are silent regarding the construction agreement and payment of amounts by the accused to the construction company in instalments. Apparently the complainant only put forward a case that a cheque was issued towards cost of the construction work of the accused and that the cheque was later dishonoured for want of sufficient fund. Sufficient evidence has been adduced by the accused to rebut the statutory presumption under section 139 of the Negotiable Instruments Act and it cannot be said that the court below committed an error in holding that Ext.P1 cheque was not supported by consideration. For all these reasons, I do not find any ground to interfere with the order of acquittal passed by the court below. The appeal is bereft of merit. It is accordingly dismissed. V. GIRI, JUDGE. pmn/ CRA.691 /2001 4