IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.A.No. 1134 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.140/2003 Dated 30/06/2003 CC.80/2000 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... APPELLANT(S): COMPLAINANT: -------------------------------------------------- PALLIYARAKAVU SERVICE CO-OPERATIVE SOCIETY LTD.NO.A.929, KAVALAM P.O., ALAPPUZHA DISTRICT, REPRESENTED BY SECRETARY, M.ROFFIN. BY ADVS. MR.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENT(S): ACCUSED & STATE: ---------------------------------------------------------- 1. THOMAS P.MALIACKAL, S/O.M.C.POTHAN, MALIACKAL HOUSE, PULINCUNNU P.O., ALAPPUZHA DISTRICT, PROPRIETOR, MALIAKAL MODERN MILLS. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.JOMY GEORGE R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M. N. KRISHNAN, J. ---------------------------------------- Crl. Appeal No. 1134 OF 2003 ----------------------------------------- Dated this the 15th day of June, 2009. JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C No. 80/2000 of the Judicial Magistrate First Class Ramankary. It is the case of the complainant that towards the value of the paddy purchased and towards the discharge of that liability the accused had issued a cheque which when presented for encashment returned with endorsement of 'exceeds arrangement'. Thereafter statutory notice was issued and as the amount was not paid prosecution was launched. The case of the accused appears to be that there was transaction between the complainant and the accused and at the time of the transaction on 06/04/1999 that is when it was commenced, towards security a blank signed cheque was issued. Trial Court after analyzing the materials held that there is no sufficient evidence to prove that the cheque is issued towards the discharge of a liability and therefore acquitted the accused. It is against that decision the present appeal is preferred. The points that arise for determination in the appeal are; CRA.1134/03 : 2 : 1) Whether the accused has committed the offence under section 138 of the Negotiable Instruments Act. 2) Is there anything to interfere with the decision so rendered. Points 1 and 2 Heard the learned counsel for both sides. The learned counsel for the appellant would submit that the Court below has approached the matter in an erroneous fashion that has resulted in miscarriage and justice. On the other hand the learned counsel for the accused would submit that materials are lacking and the decision of the court below does not call for any interference. Admittedly the complainant is a Co-operative Society registered under the Act. According to the complainant the cheque is issued towards the purchase price of the paddy taken by the accused from the complainant. When it is a transaction of a public body and as it is governed by the rules and regulations, certainly there will be clinching documentary evidence to prove the transaction. In a case where the society sells the paddy on credit basis necessarily it has to be evidenced by the entry somewhere in the account book maintained in the ordinary course of business. Similarly, when the amount is paid back there must be corresponding entries in the CRA.1134/03 : 3 : books to prove the receipt of the amount. Every year there will be the balance sheet prepared which will also indicate the outstanding due to the society. If these three can be proved, scrutinized and found to be acceptable then it may be very helpful for one to decide this case. The mere suggestion here and there when the documentary evidence is capable of being produced cannot be a substitute for proof. Therefore without going much into the details, i want to grant an opportunity to the complainant to establish its case by satisfying the conscience of the court by producing relevant documents acceptable in law as well as evidence. Needless to say, the accused is entitled to challenge the same when it is put to proof by way of cross examination. He can also produce documents in support of its contention to show the insufficiency or inaccuracy of the documents of the complainant. Therefore the criminal appeal is disposed as follows. (1) The order of acquittal is set aside. (2) The matter is remitted back to the Trial Court for fresh disposal after permitting both the complainant and accused to adduce oral evidence as well as documentary evidence in support of there contentions. (3) They are also permitted to examine additional CRA.1134/03 : 4 : witnesses if they choose to do so. Thereafter the court below is directed to consider the matter and dispose it of in accordance with law. Parties are directed to appear before the court below on 29/07/2009. If the accused is not able to be present on 29/07/2009 as it is submitted that he is working abroad, two months time from that date be given for his appearance. Both the parties would see that the matter is disposed of in a time frame. At any rate the matter shall be disposed of within six months from the date of first appearance. (M. N. KRISHNAN, JUDGE) Sbna/