IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 1099 of 2003() ---------------------------------- CC.761/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR AGAINST THE JUDGEMENT/ORDER IN CRLP.162/2003 DATED 03/07/2003 .................... APPELLANT/COMPLAINANT: ----------------------------------------- V.V. BASHEER, VELLAKUDY HOUSE, KANDANTHARA, PERUMBAVOOR. BY ADV. MR.M.M.SAIDU MUHAMMED RESPONDENTS/STATE & ACCUSED: --------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.A. MUHAMMED, THAZHATHEKUDIYIL HOUSE, PERUMATTOM, PUTHUPPADY, MUVATTUPUZHA. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R2 BY ADV. MR.SIRAJ KAROLY. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1099 OF 2003 ------------------------------ Dated this the 11th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the JFCM, Perumbavoor in C.C.No.761/1998. It is the case of the complainant that the accused had borrowed a sum of Rs.20,500/= and towards the discharge of the liabilty, had issued two cheques for Rs.10,500/= and Rs.10,000/= each which when presented for encashment, returned with the endorsement of insufficiency of funds. Though a lawyer notice was issued, the transaction was not closed, hence the prosecution. The defence appears to be one of a total denial. The learned counsel for the parties had taken me through the evidence adduced in this case as well as the documents produced. 2. A perusal of the complaint would reveal that the accused is described in his personal capacity and the transaction is of a loan. From the evidence of PW1, it appears that the complainant is an agent dealing with timber 2 CRL.A.NO.1099/03 etc and the accused had purchased some timber or firewood from the Golden Timbers and towards the purchase price of that timber had approached the complainant, who had advanced money for the transaction. But when I perused Exts.P1 and P2, it can be seen that the cheque is issued by a person namely the accused as the Proprietor of T.M. Building Materials and Mobile Agencies. So, the amount is advanced to that proprietary concern or in other words, the amount is due from the said concern. Therefore, unless that proprietary concern is arrayed as an accused in the case, an action will not lie against an individual for the reason that there is no personal debtor or creditor relationship between the complainant and the accused. So, on that solitary ground, the prosecution is defective and therefore, it has to end in acquittal. So though on different grounds I also hold that the accused is entitled to an acquittal. Therefore, the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE cl 3 CRL.A.NO.1099/03 4 CRL.A.NO.1099/03