IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 CRL.A.No. 1973 of 2005() ------------------------ (JUDGMENT IN ST.368/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM). (CRL. LEAVE PETITION GRANTED ON 24/10/2005 VIDE ORDER IN CRL.L.P.545/05). .................... APPELLANT(S): COMPLAINANT. -------------------------- K.C.MOULI, 'OERAZIL', HOUSE NO. 588, WARD NO.2. K.S.ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.B.JAYASURYA RESPONDENT(S): ACCUSED AND STATE. --------------------------------- 1. SATHYASEELAN (KUMAR), S/O.SOMAN, PANAYIL VEEDU, TC 42/1489, SUGAMAM NAGAR, MUTATHARA P.O. VALLAKKADAVU, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.SRI.PIRAPPANCODE V.S.SUDHIR SRI.R.V.SREEJITH R2 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.1973 of 2005 ---------------------------------------------------- Dated this the 9th day of August, 2011 Judgment This appeal is filed by the complainant whose case was acquitted by the learned Magistrate under Section 255(1) of the Cr.P.C. The complaint was filed under Section 138 of the N.I.Act. The case of the appellant is that the accused had borrowed from him a total amount of Rs.1,05,000/- and to discharge that debt, two cheques, one cheque dated 12.10.2000 for Rs.75,000/- and the other dated 3.10.2000 for Rs.30,000/- were issued by the accused. Both cheques were presented for encashment on 18.10.2000. The cheques were returned with the endorsement “full cover not received” and “insufficient funds”. Notice was sent by the complainant to the accused by registered post with acknowledgement due. The notice was returned unserved with the endorsement “unclaimed”. Before the learned Magistrate, the complainant got himself examined as P.W.1 and Exts.P1 to P8 were marked. The accused also got himself examined as D.W.1. 2. The accused contends that two cheques were not drawn on his account and that those cheques do not bear his signatures. The transaction was also denied by him. The further Crl.A.1973/05 2 contention raised by the defence is that Ext.P5 registered notice was not sent in the correct address(Ext.P5 is the returned cover) The house number shown there is T.C.42/1489 whereas the correct house number is T.C.42/1409. The learned counsel for the complainant would submit that it was only a typographical error. Instead of '0' the figure '8' happened to be typed. According to the complainant, there is no house having T.C.No.42/1489 in Muttathara. But there is no evidence at present to come to such a conclusion. The Postman was not examined. The examination of the Postman may be necessary since it has to be proved whether the notice was actually tendered to the accused. The normal presumption could have been that the notice was tendered to the addressee and because the addressee refused to receive it, it was returned with the endorsement 'unclaimed'. But since the house number shown in the notice is T.C.42/1489 instead of T.C.42/1409, it may have to be examined whether the notice was actually taken to the accused. 3. With regard to the transaction also the learned counsel for the accused would submit that no acceptable evidence was adduced by the complainant to prove that he had sufficient Crl.A.1973/05 3 money with him to lend it to the accused. The learned counsel submits that though the complainant contends that he is having accounts to prove the same, no such account was produced. But the learned counsel for the complainant would submit that there was no specific case for the accused regarding the so-called denial. The accused took inconsistent stand with regard to the cheques in question. At one place it was contended that the complainant was a tenant of the building belonging to the accused. It was contended that while the complainant was residing in the said rented building, he committed theft of the cheque leaves and made use of the same for foisting this case. It was also contended that though in the cheque, above the signature of the drawer, the seal of Swathi Krishna Handicrafts is seen affixed, the accused has no connection whatsoever with that concern. It is not known whether the said shop/concern is a proprietary concern or a partnership concern. The learned counsel for the complainant would submit that since such a specific contention was not raised by the accused, the complainant had no opportunity to summon the documents from the bank regarding the opening of the accounts/ledgers etc. to prove whether the account was opened or operated by the Crl.A.1973/05 4 accused. Though a contention was raised by the accused that the cheque was stolen away by the accused, no action was taken by the accused with regard to the same. No notice was also sent to the complainant or anybody else to find out whether there was any truth in that allegation. However, in view of the fact that a mistake is there with regard to the house number, opportunity has to be given to the complainant to adduce further evidence. For that purpose, the case has to be remanded to the trial court. 4. In the result, this Criminal Appeal is allowed in part. The judgment of acquittal passed by the learned Magistrate is set aside and the case is remanded to J.F.C.M.Court-II, Thiruvananthapuram for fresh disposal. Both sides are given opportunity to adduce further evidence in the matter. The parties will appear before that court on 6th September, 2011. Transmit the records forthwith. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.1973/05 5 Crl.A.1973/05 6