IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 CRL.A.No.167 of 2008 (A) ------------------------------ ORDER IN CRL.L.P.51/2008 Dated 16/01/2008 ST.57/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KARUNAGAPPALLY. .................... APPELLANT: COMPLAINANT -------------------------------- C.M.LEELA, AGED 45 YEARS, D/O.DEVAYANI, KANICHERRIL, PRAYAR SOUTH, ALUMPEEDIKA P.O. CLAPPANA VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.V.V.RAJA R.RANJITH RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. M.J.JESSY, AGED 27 YEARS, MANNATHU THARAYIL, S.V.MARKET P.O., AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.BIJU M.JOHN PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.167 of 2008 ------------------------------------------------ Dated this the 7th day of April, 2008 JUDGMENT The complainant in S.T.57 of 2007 on the file of the Judicial First Class Magistrate's Court-II, Karunagapally is the appellant. She assails in this appeal, the acquittal of the first respondent by the Magistrate of offence under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 2. The appellant filed complaint before the Judicial First Class Magistrate Karunagapally alleging inter alia that in discharge of liability towards her, the respondent issued Ext.P1 cheque for Rs.25,000/- drawn on her account at the Karunagapally branch of the Federal Bank; that on presentation of the cheque for encashment, it was returned dishonoured by the drawee bank assigning the reason “funds insufficient”; that consequent thereon the original of Ext.P3 notice was caused to be issued to the first Crl. Appeal No.167 of 2008 -2- respondent through lawyer intimating her of the dishonour of Ext.P1 cheque and demanding payment of the amount covered by the said cheque; that the said notice was refused to be accepted by the first respondent and has been returned to the appellant and that is Ext.P5; and that despite causing return of Ext.P5 notice, the first respondent has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and she has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate recorded the sworn statement of the complainant and registered the complaint on the file of his court as C.C.1103/04 taking cognizance of the offence under Section 138 of the N.I. Act. On appearance of the first respondent in the court below pursuant to receipt of summons, he was served with copies of all relevant records in the case and was questioned by the Magistrate reading over the particulars of the Crl. Appeal No.167 of 2008 -3- offence and explaining it to her. Thereupon, the first respondent pleaded not guilty and consequently, the case was posted for trial. Thereafter, as per the orders of the Chief Judicial Magistrate, Kollam the case was made over to the Judicial First Class Magistrate- II, Karunagapally where the case was refiled as S.T.57/07. 4. On the side of the appellant, she gave evidence as PW1 and got marked Exts.P1 to P6 in evidence. On the appellant closing her evidence, the first respondent/accused was questioned under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against her and maintained that she is innocent. According to her, the brother of the appellant married her on 7th September, 1996; that they belong to different religions and their marriage took place disregarding the objections raised by the families of both of them; that after marriage they were residing in a rented Crl. Appeal No.167 of 2008 -4- building, “Mamoottil veedu”, Padanayarkulangara South that on 17/10/99 her husband passed away due to cancer and his body was cremated in a public crematorium as he was not having any land of his own; that her deceased husband was a teacher in Guhananthapuram Higher Secondary School at Chavara; that the Manager of the said school who had attended the cremation offered to give her job under the dying in harness scheme and she gave application for the purpose; that the appellant, her husband, her brother and the mother of the deceased raised objections thereto; that the appellant and her brother demanded her to pay an amount of Rs.1 lakh to abstain from raising any objection to her being given appointment under the dying in harness scheme; that ever before the said occurrence she was having a bank account only with no cheque facility; that the brother of the appellant took her to the Federal Bank and he himself deposited an amount of Rs.500/- in the said bank and Crl. Appeal No.167 of 2008 -5- obtained cheque book in that account in her favour and on 30/10/99 cheque Nos.141 to 144 from out of the said cheque book were obtained from her causing her to sign in the said cheques forcibly and also got signed from her an agreement in a stamp paper worth Rs.50/-; that she has not received any amount from the appellant; that she got job under the dying in harness scheme though she is at present having no job due to division fall and protection was given only to those who were in employment till 1997; that the dates on which she got job and she lost job are respectively 01/04/2000 and 14/07/05; and that she has got a daughter born in the wedlock with the brother of the appellant and that at present she has re- married and is having another daughter also. 5. On the defence side the first respondent gave evidence as DW1 and got DW2 also examined and got Exts.D1 and D2 marked in evidence. The court below considered the case in the light of the evidence adduced as Crl. Appeal No.167 of 2008 -6- aforesaid and acquitted the first respondent finding her not guilty of the offence under Section 138 of the N.I. Act in view of his finding that the appellant has miserably failed to bring home the guilt in the first respondent as there is no evidence regarding the financial ability of PW1 the appellant to advance Rs.1 lakh to the first respondent as is the case set up and that the presumption under Section 139 of the N.I. Act will not help the appellant to establish her case alleged. Hence, this appeal by the aggrieved appellant. 6. It is vehemently contended before me by the learned counsel for the appellant that the court below has proceeded in the wrong direction to appreciate the case; that the appellant has given evidence as to how she happened to advance Rs.1 lakh to the first respondent and the first respondent in discharge of that debt issued four cheques of Rs.25,000/- each with different dates; that Crl. Appeal No.167 of 2008 -7- the amount was being advanced to the first respondent for discharge of liabilities due to the Karunagapally branch of the K.S.F.E for discharging her debt and that the court below went wrong in concluding relying on Exts.D1 and D2 and Ext.P6 that the case set up by the first respondent is more probable and that the first respondent should have been found guilty of offence punishable under Section 138 of the N.I. Act accepting the case of the appellant. 7. As rightly contended by the counsel for the appellant there is no convincing proof regarding execution of Ext.D1 agreement between the appellant and the first respondent or regarding issuance of Ext.D2 reply on behalf of the first respondent to Ext.P3 notice. In proof of Ext.D1 other than the interested testimony of DW1/the first respondent there is no other evidence. Ext.D1 is only a photostat copy and when confronted, PW1 has denied execution by her of Ext.D1. DW2/Upendran is husband of the appellant. He Crl. Appeal No.167 of 2008 -8- has also denied of his having been an attestor to Ext.D1. There are three other witnesses also to Ext.D1 but none of them is examined. Hence, on the basis of interested testimony of DW1/the first respondent alone Ext.D1 could not have been accepted as a document duly proved. As regards Ext.D2 which is copy of a lawyer notice alleged to have been issued in reply by Advocate S.Prahaladan to Advocate S.Jayaprakash also there is only the interested testimony of the first respondent as DW1 to prove the same. Advocate S.Prahaladan is the lawyer of the first respondent in the court below. He being the principal witness to prove Ext.D2 he should have tendered evidence in proof of Ext.D2 rather than as counsel appearing for the first respondent if at all Ext.D2 had to be proved. Further there is no evidence as regards despatch of Ext.D2 by post as either the postal registration receipt for despatch of Ext.D2 or acknowledgment for receipt of notice by the addressee who is the Crl. Appeal No.167 of 2008 -9- counsel for the appellant is not produced. As regards Ext.P6 it is a counter affidavit filed by the first respondent in O.P.750/02 filed by the mother of her husband before this Court. Apart from proof that it is counter filed by her the contents therein cannot be read as evidence in the case when the first respondent who has tendered evidence as DW1 had not been confronted with any of her statements made therein. 8. The question then is as to whether on the basis of the evidence adduced by PW1 and Exts.P1 to P5 produced on the side of the appellant the appellant was able to establish the case alleged. As rightly observed by the court below there is no convincing evidence to show that the appellant was in affluent circumstances to raise such a huge amount as Rs.1 lakh to be given to the first respondent on 15/10/02 to discharge debts due to Karunagapally branch of the K.S.F.E. According to DW1/the first respondent, there was Crl. Appeal No.167 of 2008 -10- liability to the K.S.F.E on account of defaulted instalments of Kuri and chitty loan in the name of her late husband and that is now in the stage of revenue recovery proceedings. She had not been asked as to whether she had not been advanced Rs.1 lakh by the appellant to clear of that debt and that she has not cleared that debt. But all the same, if at all as appellant swears, an amount of Rs.1 lakh had been advanced and the debt due to K.S.F.E in the name of Manoharan/the deceased husband of the first respondent had been cleared to that much extent it would have been evidence of the appellant having advanced Rs.1 lakh to the first respondent. The appellant has not cared to adduce evidence on those lines. Similarly the stand of the first respondent is that she was not having any cheque facility though she was having an account at the Karunagapally branch of the Federal Bank and that cheque book was being received for the first time by the appellant's Crl. Appeal No.167 of 2008 -11- brother depositing Rs.500/- in that account and thereafter depositing a further amount of Rs.400/- so as to bring the balance amount in her account to Rs.1,000/- to facilitate the issuance of cheque book. This according to the first respondent has taken place on 26/10/99. If records in relation to the account in which Ext.P1 cheque is drawn is got down the above details can be established and if that is established the defence case will stand highly probabilised if not proved, but that also was not done on the side of the first respondent. This means that on the relevant aspects of the case both parties had not applied their minds. It is true that this appeal can be disposed of for reason of absence of evidence on the side of the appellant to establish that she was having sufficient funds to advance amount by way of loan and that Section 139 will not come to her rescue to establish her case. But all the same, this is only one among four cheque cases filed by the appellant against the first Crl. Appeal No.167 of 2008 -12- respondent and for the purpose of a just decision in all those cases it is necessary that evidence on the above two vital aspects is got down respectively from the Karunagapally branch of the Kerala State Financial Enterprise and the Karunagapally branch of the Federal Bank for which the burden is respectively on the appellant and the first respondent. I am of the view that to enable both sides to adduce evidence on those aspects the case requires to be remanded to the court below. 9. In the result, I set aside the impugned judgment of the court below acquitting the first respondent of offence under Section 138 of the N.I. Act and remit the case back to the court below for disposal afresh enabling both sides to adduce evidence on the two aspects mentioned above. The parties shall appear in the court below positively on 30/04/08. No summons notice need be issued to the parties as counsel on both Crl. Appeal No.167 of 2008 -13- sides take notice of the posting date in the court below. The appellant shall produce a copy of this judgment in the court below to enable the court below to abide by the above directions and the registry shall forward the LCR to the Court below forthwith to enable the court below to take up the case on 30/04/08. The court below shall give priority to this case, the complaint being filed as early as in 2004 though the case appears to be of 2007 by reason of re-numbering and shall dispose of the case at the earliest and in any event within three months from 30/04/08. 10. This appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-