IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 CRL.A.No. 41 of 2003() ---------------------------------- CC.1096/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... PETITIONER (S): COMPLAINANT ------------------------- N.J.GEORGE, B.B.BHAVAN PHARMACEUTICALS, ORUMANAYOOR, CHAVAKKAD (NEELAMKAVIL HOUSE, ORUMANAYOOR). BY ADVS. MR.GRASHIOUS KURIAKOSE MR.GEORGE MATHEWS RESPONDENT(S): ACCUSED & STATE -------------------------- 1. E.M.BABU, EDAKKALATHOOR HOUSE, PALAYOOR, CHAVAKKAD - 680 506. 2. M/S.PALAYOOR TRADING COMPANY REPRESENTED BY MANAGING PARTNER K.C.SHAJI, KOMBAN HOUSE, PALAYOOR, CHAVAKKAD. 3. E.K.THOMSON, EDAKKALATHOOR HOUSE, HOSPITAL ROAD JUNCTION, CHAVAKKAD. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. MR.RAJIT FOR R1 TO 3 BY PUBLIC PROSECUTOR MR.THOMAS JOHN AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.41 OF 2003 ------------------------------ Dated this the 1st day of July, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the Judicial Magistrate of First Class, Chavakkad in C.C.No.1096/1999. The court below, on examination of the materials, found against the complainant and acquitted the accused. I am not going deep into the matter for the reason that additional materials are necessary for the proper disposal of the case. 2. The case in short is that the complainant and others had joined in a kury conducted by the accused in the case and they were regularly remitting the instalments. But, the former stopped the kury and thereby it could not be continued. So, it was decided to give the amount due to the complainant by way of a cheqe and that is what the complainant says that in discharge of the liability, a cheque was issued and when it was presented for encashment, returned with the endorsement of insufficiency of funds. 2 CRL.A.NO.41/03 3. On the contra, the accused would contend that admittedly, the complainant had joined in a kury in their concern but the contention that kury has been terminated is refuted. They say that the kury continued even on the date of trial of the case. 4. If an establishment which starts and conducts kury, there will be material documents to prove the conduct of the kury. Mere production of some rent receipts for payment of the building rent cannot be accepted by any court of law to prove the conduct of the kury. So, I do not want to shut out the evidence. If the accused still conducts kury, they may produce documents to prove that. It does not mean that I have made any expression regarding the cheque in question. The complainant may also adduce additional evidence in the case to establish the factum regarding the issuance of the cheque, stoppage of the kury and how the cheque happened to be issued. 5. Therefore, the order of acquittal passed by the trial court is set aside and the matter is remitted back to the court 3 CRL.A.NO.41/03 below with a direction to consider the matter after affording equal opportunities to the complainant as well as the accused to adduce evidence in support of their respective contentions and then dispose of the matter in accordance with law. The parties are directed to appear before the court below on 17.8.2009. M.N. KRISHNAN, JUDGE cl 4 CRL.A.NO.41/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.41 OF 2003 ------------------------------ 1st day of July, 2009 JUDGMENT 5 CRL.A.NO.41/03