IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 168 of 2002() ----------------------- ST.738/1998 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... APPELLANT(S): COMPLAINANT ------------------------- DESABANDHU KURIES & LOANS (P) LTD., REGD. OFFICE POONKUNNAM, THRISSUR VILLAGE, THISSUR TALUK, REP. BY AUTHORISED MANAGER, ANTO PAUL, S/O.MOOKKAN PAUL, MANNUTHY DESOM, MULLAKKARA, OLLUKKARA VILLAGE, THRISSUR TALUK. ADDITIONAL APPELLANT 2. JOSEPH VARGHESE, AGED 45 YEARS S/O K.C.VARGHESE, CHAIRMAN M/S DESABANDHU KURIES & LOANS (P)LTD BY ADV. SRI.M.V.MATHEW SRI.K.PADMANABHAN RESPONDENT(S): ACCUSED ---------------------- 1. DAVIS, S/O.ALUKKA POULOSE, KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED Additional appellant impleaded vide order dated 26-6-09 in Crl.M.A.No.10610/07 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.168 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009 JUDGMENT In this appeal, the complainant in ST.No.738/1998 on the file of Chief Judicial Magistrate, Thrissur challenges the judgment of the lower court acquitting the respondent/accused finding him not guilty of offence punishable under Section 138 of the Negotiable Instrument Act. 2. The appellant/complainant is Desabandhu Kuries & Loan (P) Ltd., Thrissur represented by the Authorised Manager - PW1. During the pendency of this appeal, the Authorised Manager-PW1 died. The present Chairman of the complainant company is impleaded as additional appellant. The appellant/complainant filed a complaint before the lower court alleging that the respondent/accused was a subscriber of a monthly kuri conducted by the complainant company, that accused bid the kuri amount drawn on March 10, 1997, that for the defaulted instalments amounting to Rs. 21879/-, the respondent issued CRA.No.168/02 2 a cheque - Ext.P2 dated 7-5-1998 which when presented for collection through Pushpagiri branch of Dhanalakshmi Bank, it was returned dishonoured due to insufficiency of funds in the account of respondent/accused and that inspite of the notice issued, the respondent did not repay the amount. 3. On receipt of the complaint, the lower court recorded the sworn statement of PW1 and took cognizance of the case. The respondent on appearance before the lower court pleaded not guilty to a charge under Section 138 of the Negotiable Instrument Act. PW 1 was examined, Ext.P1 toP9 were marked on the side of the complainant. When questioned under Section 313 Cr.P.C., the respondent denied having committed any offence before the lower court. On his side, Exts.D1 to D7 were marked. The lower court on an evaluation of evidence found that Ext.P2 cheque was issued as a security for the chitty amount for which PW1 has filed another complaint against the wife of the accused which was settled and found the respondent not guilty of the offence punishable under Section 138 of the Negotiable Instrument Act and acquitted him under Section 255(1) of Cr.P.C. The CRA.No.168/02 3 aggrieved complainant has come up in appeal challenging the said judgment of the lower court. 4. Heard Sri.K.Padmanabhan, the learned counsel for the appellant. There was no representation for the respondent/accused. 5. Sri.K.Padmanabhan, learned counsel for the appellant/complainant argued that another complaint filed by the appellant evidenced by Ext.D6 which is the certified copy of the complaint in ST.No.1000/98 of the same court, is with respect to another chitty subscribed by the respondent/accused and that the lower court mistook that the said complaint was also in respect of the same transaction. 6. The only point which arises for consideration is whether the finding of the lower court that the respondent/accused is not guilty of the offence punishable under Section 138 of the Negotiable Instrument can be sustained ? 7. Before the lower court, the complainant as PW1 has proved the fact that the respondent/accused has joined in a kuri in his company and for the defaulted amount, the respondent issued the cheque- Ext.P2 CRA.No.168/02 4 which when presented for collection was returned dishonoured due to insufficiency of funds in the account of the respondent and that inspite of the notice, he did not repay the amount. Exts.P1 to P9 supported his case. The case of the respondent/accused when questioned under Section 313 Cr.P.C. was that for the present transaction his wife has also issued a cheque in favour of the complainant company for which the complainant filed ST.No.1000/98 and realised the amount from him and that misusing the cheque issued by the accused, the complainant has filed this complaint. 8. On going through the evidence of PW1, it is seen that PW 1 has admitted that for the amount due under the present case evidenced by Exts.D6, he has filed another complaint against the wife of respondent and the same was settled. In the light of the above admission made by PW1, I feel that the lower court is justified in holding that the accused has rebutted the presumption available under Section 139 of the Negotiable Instrument Act and finding him not guilty and acquitting him. I find no ground to interfere with the said finding of the lower court. CRA.No.168/02 5 In the result, I find no merit in this appeal and the same is hereby dismissed. P.Q.BARKATH ALI JUDGE sv. CRA.No.168/02 6