IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 CRL.A.No. 1044 of 2004() ----------------------------------- CC.647/2001 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR ..................................... APPELLANT(S): COMPLAINANT: ----------------------------------------------- V.A.KAREEM, S/O. AHAMMEDALI, VALIYAPARAMBIL, OTTUPURATHUPARAMP,ELOOKKARA KARA, KADUNGALLUR VILLAGE, PARAVUR TALUK. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): ACCUSED & STATE: ----------------------------------------------------------- 1. A.S.BAPPUTTY, S/O. SAITHU, KOLLAMMAVUDIYIL, MULAVUR KARA, MOOVATTUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J -------------------------- Crl.Appeal.No.1044 OF 2004 --------------------------------------- Dated 1st December, 2010 J U D G M E N T This is an appeal arise from the order of acquittal. 2. The appellant filed a complaint against first respondent alleging offence u/s.138 of Negotiable Instruments Act ('the Act' for short). As per the allegations in the complaint, the complainant sold a lorry to one Meeran for and on behalf of the accused, as per his direction on 10.12.1998. He received the advance and a sale agreement was also executed as Ext.P4. The balance amount was paid on different dates. Three cheques were issued for the discharge of the said liability. The cheques on presentation, bounced for want of sufficient fund. Hence, a lawyer notice was issued. No reply was sent and no amount was paid and a complaint was filed alleging offence u/s.138 of the Act. 3. PW 1 and 2 were examined and Ext.P1 to P10 were marked. After closing evidence, the case was posted for questioning under section 313 of Cr.P.C. Thereafter, charge was framed by trial court under section 420 IPC. PW2, complainant Crl.A. No.1044/04 2 was examined again and accused was questioned again under section 313 of the Code. DW1 was examined on the side of accused. The trial court acquitted holding that there is no averment in the complaint or in the version given by complainant, even in the further chief examination regarding dishonest intention of the accused. Hence, no offence under section 420 IPC is made out. 4. Learned counsel for appellant argued that there was no ground for the trial court to frame charge under section 420 IPC. No allegations were made in the complaint or in evidence that offence under section 420 IPC was made out. But the trial court suo-moto framed charge under section 420 IPC, it is submitted. According to learned counsel for appellant, there was some slight difference in the name of the accused and the name of account holder, but both are one and the same and this fact is revealed from the various admissions by accused himself through evidence of DW1. He did not send any reply to lawyer notice pointing out that the account does not belong to him though account details are shown in lawyer notice. In the above circumstances, trial court committed a serious mistake in framing charge under section 420 IPC and acquitting the accused holding that there is Crl.A. No.1044/04 3 no evidence constituting the ingredients of sec.420 IPC etc., it is argued. 5. Notice was served on first respondent but there is no representation for him. On hearing appellant's counsel and on going through the records, I find that trial court itself was satisfied that there is no averment in the complaint or in the version given by complainant or even in the further chief examination disclosing the most vital ingredient of offence under section 420 IPC. In such circumstances, trial court ought not to have framed charge under section 420 IPC, in the absence of any evidence. If there are no allegations on the complaint or evidence to constitute an offence, the court shall not frame charge for such offence. After framing charge for a offence which is not disclosed from records, the court cannot turn around and say there is no evidence and acquit the accused. 6. It also appears from evidence that the question whether the cheques were drawn on the account of the accused himself was not in dispute. However, on going through the records, it appears that there is no specific allegation made by complainant in the complaint that cheques were drawn on the account maintained by accused with that banker. But, in the complaint as Crl.A. No.1044/04 4 well as in other documents, reference is made about this fact. On consideration of the fact and circumstances of this case, I find it only just and proper that complainant is given an opportunity to establish that cheques were drawn on his own account as required under section 138 of the Act. 7. At any rate, the acquittal order is unsustainable, and the matter requires reconsideration and hence the following order is passed: 1. The order under challenge is set aside. 2. The charge framed by trial court under section 420 IPC is set aside. 3. The trial court shall take the case on file and dispose of the case, in accordance with law. 4. It is made clear that appellant shall be afforded a reasonable opportunity to adduce evidence, as the court may deem fit and proper, to establish that the cheques involved in this case are drawn from an account maintained by accused with his banker. 5. The parties shall appear before the trial court on 3.1.2011. K. HEMA, JUDGE. Sou.