IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 CRL.A.No.206 of 2008 (A) ------------------------------ ORDER IN CRL.L.P.882/2007 DT.04/10/07 ST.816/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA. .................... APPELLANT: COMPLAINANT: --------------------------------- TOMY MATHEW, S/O.MATHEW, KUZHINJALIYIL HOUSE, CENTRAL BAKERY, KATTAPPANA. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ACCUSED AND STATE: --------------------------------------------- 1. N.G.ANTONY, HOUSE NO. 25/15 B, LINE II, TOC H SCHOOL ROAD, VYTILA P.O., ERNAKULAM. PRESENTLY RESIDING AT NARITHOOKKIL HOUSE, NARIYANPARA P.O., VENGALOOR KADA, KATTAPPANA VIA, IDUKKI DISTRICT, KERALA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.DILEEP (KALLAR) SRI.A.H.NAJMAL PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.206 of 2008 ------------------------------------------------ Dated this the 9th day of April, 2008 JUDGMENT The appellant is the complainant in S.T.816/05 on the file of the Judicial First Class Magistrate's Court, Kattappana. He assails in this appeal the acquittal of the first respondent/accused of offence punishable under Section 138 of the N.I. Act vide Section 255(1) of the Criminal Procedure Code. 2. The appellant filed complaint in the court below alleging inter alia that himself and the first respondent were friends for a long time and they were having financial dealings also for a long time and they were having transactions in money, cheque and demand draft; that once a cheque given by the first respondent to him was dishonoured and notice under Section 138 of the N.I. Act was caused to be issued to him and after receipt of notice the first respondent approached him Crl. Appeal No.206 of 2008 -2- and settled the matter; that thereafter also they engaged in money transaction; that during the first week of May, 2005 the first respondent approached him and borrowed Rs.46,000/- from him and in discharge of the said liability he filled up and signed cheque No.626337 with date 30/05/05 drawn on his account with the Global Trust Bank, Ernakulam for Rs.46,000/- and gave it to him in the presence of Josekutty Kilirooparampil; that he presented the cheque for encashment and as the first respondent has stopped payment of the cheque the said cheque was returned dishonoured with the said endorsement under Ext.P2 memorandum that on further enquiry he could understand that there was no sufficient funds also in the account of the first respondent to honour the said cheque; that he caused the original of Ext.P3 notice being issued to the first respondent under Ext.P4 postal registration receipt through his lawyer Crl. Appeal No.206 of 2008 -3- on 20/06/05 intimating him of the dishonour of the cheque and demanding payment of the amount covered by the cheque; that the first respondent received the notice on 24/06/05 under Ext.P5 postal acknowledgment card but he has not made payment of the amount covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate who recorded the sworn statement of the complainant and registered the complaint on the file of his Court as S.T.816/05 questioned the first respondent on his appearance pursuant to receipt of summons reading over the particulars of the offence and explaining it to him and thereupon, as the first respondent pleaded not guilty a trial of the case was conducted in the court below. Crl. Appeal No.206 of 2008 -4- 4. On the side of the appellant, he gave evidence as PW1 and got examined also the Manager of the drawee Bank as PW2 and got marked on his side Exts.P1 to P7 series. On the appellant closing his evidence, the first respondent was questioned by the Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. He also submitted a written statement of defence wherein he has raised a contention that he is conducting business at Ernakulam that himself and the appellant are friends and the appellant used to come over to his house whenever he came to Ernakulam for business purposes that while so, during November, 1993 there was a function in his house wherein the appellant also participated; that after the said function he realised that his cheque book containing four leaves is lost and he informed Crl. Appeal No.206 of 2008 -5- the matter to the bank and caused payment thereunder being stopped; that by the end of June, 2004 the appellant presented at the bank one of his lost cheque leaves and got it dishonoured and caused notice being issued to him and only then that he understood that the cheque leaves were being stolen by the appellant; that on realising that he would lodge complaint in the matter before the police, the appellant and his parents came over and met him and requested him not to initiate any action in the matter and undertook to return the stolen cheque leaves and accordingly, two cheque leaves were returned. In relation to cheque leaf No.626337 he was told that as mistake occurred while filling it up, the said cheque leaf was torn and destroyed and that therefore, he did not give any complaint to the police and it is only when notice in this case was received that he understood that what he was given to Crl. Appeal No.206 of 2008 -6- understand in relation to that cheque was false and that he has issued reply also to the said notice. According to him, either the handwriting or the signature in Ext.P1 cheque is not his and is cheque made up on the cheque leaf stolen from his house. 5. On the defence side DWs.1 to 3 were examined of whom DW3 is the first respondent himself and Exts.D1 to D8 were got marked. 6. The court below considered the case in the light of the evidence adduced as aforesaid by both sides; came to the conclusion that there is no evidence that Ext.P1 cheque was issued in discharge of any legally enforceable debt and that there is no proof of execution of Ext.P1 cheque and consequently, held that no offence under Section 138 of the N.I. Act is established and acquitted the accused of the said offence vide Section 255(1) of the Cr.P.C. Hence, this appeal by the aggrieved appellant. Crl. Appeal No.206 of 2008 -7- 7. It is vehemently contended before me by the learned counsel for the appellant that Ext.P6 receipt also is issued by the first respondent acknowledging his having delivered Ext.P1 cheque to the appellant and that is also attested by Josekutty Kilirooparampil Kanchiyar made mention of in the complaint itself that the stand taken by the first respondent in Ext.D1 reply is not consistent with his statement in the written statement of defence as the stand taken in Ext.D1 is not regarding missing of the cheque in the course of any function that was taking place in his house, but that during November, 2003 the appellant went over to his house provoked and threatened him and later, the respondent came to know that a cheque book containing five blank cheques was missing from his table and not four cheques as stated in the written statement of defence. However, the stand taken in Ext.D1 is that Ext.P1 cheque is a forged Crl. Appeal No.206 of 2008 -8- one and the respondent has not written signed or issued Ext.P1 to the appellant. It is also contended by the learned counsel for the appellant that another cheque which was made mention of in Ext.D6(c) intimation given by the first respondent to his bankers is cheque No.626336; that it was also a cheque issued to the appellant and Ext.D4 is notice issued to the first respondent consequent on its dishonour and that pursuant to the said notice mistake in the said notice was corrected subsequently by issuing Ext.D5 notice and the first respondent paid Rs.30,000/- in cash and paid the balance Rs.20,000/- by draft under Ext.D8 from out of the amount covered by the cheque made mention of in Ext.D4. According to the first respondent, Exts.D7 and D8 do not relate at all to the transaction contended under Exts.D5 and D6 but is in connection with certain other transaction which they had. However, there is no evidence in that matter Crl. Appeal No.206 of 2008 -9- and the appellant has not been able to establish that Rs.30,000/- was paid to him in cash and the balance Rs.20,000/- was paid by draft and that thus, the claim under Ext.D4 is satisfied. However, the contention of the appellant cannot be believed as such when Ext.D4 notice as also Ext.P3 notice was being issued in relation to two claims he advanced on the basis of two cheques reported to have been lost by the first respondent vide Ext.D6 (c) intimation to the drawee bank. The appellant has not examined the attestor to Ext.P6 who is alleged in the complaint to have witnessed also the transaction of the first respondent issuing the cheque and either the cheque or Ext.P6 has not been attempted to be got examined by an expert to obtain expert opinion as regards the handwriting and signatures therein especially when the burden was heavy on him to prove execution by the first respondent of Ext.P1 cheque as the first Crl. Appeal No.206 of 2008 -10- respondent has denied its execution and has contended that neither the handwriting in Ext.P1 cheque nor the signature therein is his. It is contended by the learned counsel for the appellant that the court below should have compared the signatures in Ext.P1 and P6 with the admitted signatures of the first respondent in his vakalath in the bail bond executed by him; in the statement filed by him before court under Section 313 Cr.P.C and in Ext.P5 postal acknowledgment card. 8. It is worthy to note that these are not put to the first respondent when he tendered evidence as DW3 and he is not asked as to whether all those signatures are not identical and not belonging to him. However, on a random perusal of the undisputed signature of the first respondent in Ext.P5 postal acknowledgment card and in the written statement of defence filed by him in the court below with the disputed signatures in Exts.P1 Crl. Appeal No.206 of 2008 -11- and P6, I am not of the view that the signatures are similar or identical as in the signatures in Ext.P1 and P6 the signatures end with the words “nty” probably denoting the name “Antony” whereas in the signatures in Ext.P5 and in the written statement of defence the signature does not have such specification or characteristics. Thus, as rightly found by the court below, it does not stand established that the signature and handwriting in Ext.P1 cheque is of the first respondent and that Ext.P1 is issued in discharge of debt due to the appellant by the first respondent. 9. Finally, a fervent request is made by the counsel for the appellant for a remand of the case for examining the witness to Ext.P6 who is made mention of even in the complaint as a witness to the delivery of cheque by the first respondent to the appellant. The non- examination of a material witness to the cause which has resulted in an adverse finding Crl. Appeal No.206 of 2008 -12- cannot be attempted to be cured by a remand to the court below especially when there was no reason for the appellant for not having examined the said witness at the stage of trial. The result is that concurring with the acquittal of the first respondent of offence under Section 138 of the N.I. Act this appeal deserves to be dismissed. 10. In the result, concurring with the finding of the court below I hold that no offence under Section 138 of the N.I Act stands established as against the first respondent and that therefore, the acquittal of the first respondent has only to be confirmed and consequently, dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-