IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 CRL.A.No. 1922 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.494/2003 Dated 31/10/2003 CC.26/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT/COMPLAINANT: --------------------------------- G.S. SANTHOSH, S/O. GANGADHARAN NAIR, T.C.23/701, VALIYASALA, THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON SRI.K.VINODKUMAR SRI.P.K.MANOJKUMAR RESPONDENTS/ACCUSED: ------------------------------ 1. MURALEEDHARAN POTTI, S/O. DEVARY VASUDEVAN, 'GODULAM' KIZHIMATHIKKADU P.O., KOLLAM DISTRICT. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.VAZHUTHACAUD R.NARENDRAN NAIR SRI.R.T.PRADEEP PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ======================== Crl.Appeal.No.1922 of 2003 ========================== Dated this the 18th day of February, 2008 JUDGMENT This appeal is directed against the judgment of acquittal arising from a prosecution under Section 138 of the Negotiable Instruments Act. 2. It is contended by the appellant/complainant that the court below was not justified in holding that the cheque was not drawn from the account of the accused and therefore the provisions contained in Section 138 of the Act were not attracted. 3. The case of the appellant/complainant before the court below was that, the accused had borrowed a sum of Rs.1,00,000/- from him on January 1, 1999 and issued Ext.P1 cheque dated March 20, 1993 in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account as revealed from Ext.P2 memo issued by the bank. Though a statutory notice was issued demanding payment, the accused did CrL.A.No.1922/2003 2 not repay the same. Hence the complaint. 4. Before the trial court, the complainant was examined as PW1 and Exts.P1 to P3 were marked on his side. There was no oral or documentary evidence on the side of the defence. 5. The defence set up by the accused was that he along with the complainant and some others were partners of M/s.Surabhi Systems and Devices. The firm had been maintaining an account bearing No.5/68 in Bank of India in the Kadappakkada South Branch, Kollam. According to the accused, the account could be operated by “any of the partners or the survivor” as stipulated in the Partnership deed. The firm had been functioning till 1999. The specific case of the accused was that he had put his signature in some blank cheque leaves and kept them in the office for the business purpose of the Firm. When the office had been shifted to College junction at Kollam, all documents pertaining to the firm had been taken away by the complainant. Ext.P1 cheque was one of those blank signed cheque leaves kept in the business premises. The accused further contended that he had never borrowed any money from CrL.A.No.1922/2003 3 the complainant nor had he had any money transaction with him. He further contended that since Ext.P1 cheque was issued from the joint account of the firm of which he was a partner along with the complainant he could not be prosecuted under Section 138 of the Act. 6. There was no dispute that Ext.P1 cheque was issued from the joint account. The complaint was filed suppressing the above crucial aspect. The allegation in the complaint was that the accused had availed of a personal loan and issued the cheque in discharge of the said personal liability. Obviously therefore the defence version was found to be more probable and acceptable by the trial court. The complainant, in the course of his cross examination, had attempted to advance a case that he had retired from the firm. But no documents were produced by the complainant as regards his alleged retirement or reconstitution of the firm. More importantly the complainant, had not admittedly taken any steps in that direction before the Registrar of Firms or other competent authority. For the reasons stated above, I do not find CrL.A.No.1922/2003 4 any reason to interfere with the judgment of acquittal. The appeal is without any merit, and is therefore dismissed. A.K.BASHEER,JUDGE dvs