IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 CRL.A.No. 1244 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.423/2004 Dated 19/07/2004 CC.103/2001 of THE J.F.C.M. COURT, KOTHAMANGALAM .................... APPELLANT: COMPLAINANT ----------------------------------------- M/S.AMBIKA TEXTILES, A PROPRIETORSHIP FIRM OF SMT.HARKAWAR TAWARI, D.D.BAZAR, GOPALA PRABHU ROAD, ERNAKULAM, REP: BY THE POWER OF ATTORNEY HOLDER SHRI.GIRISH KUMAR. BY ADV. SRI.MATHEW SKARIA RESPONDENTS: ACCUSED & STATE. ------------------------------- 1. MR. SALIM, PROPRIETOR, SINCERE TEXTILES, N.H.ROAD, ADMIMALI P.O., IDUKKI DISTRICT, PIN - 685 561. 2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAIBY JOSE KIDANGOOR FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON 19/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1244 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 103 of 2001 on the file of Judicial First Class Magistrate, Kothamangalam against the judgment of acquittal dated 17.4.2004. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of an offence under Section 138 of the N.I. Act. 2. Briefly the allegations in the complaint are as follows. The complainant is a proprietorship firm by name M/s. Ambika Textiles, a whole sale dealer, in textiles and the accused purchased goods on credit basis from the complainant and towards the partial discharge of the debt due to the complainant he issued a cheque bearing No.015107 dated 31.3.2000 for an amount of Rs.31,000/- drawn on the Idukki District Co-operative Crl.A. No. 1244 of 2004 2 Bank Limited, Adimaly Branch. When the complainant presented the said cheque for collection before the bank, it was dishonoured due to insufficiency of funds in the account of the accused. Thereafter the complainant issued a lawyer notice to the accused on 15.2.2000. The notice was accepted by the accused, but he did not make the payment of the cheque amount. 3. In the Magistrate Court, the Power of Attorney holder of the complainant was examined as PW1 and Exts. P1 to P7 were marked on the side of the complainant. No evidence was adduced from the side of accused. The learned Magistrate, on considering the evidence, found that the complainant has failed to establish that Ext.P2 cheque was issued to the complainant firm, that the complainant firm is owned by Harkawar Tawari, the executant of Ext.P1 Power of Attorney and the accused was acquitted under Section 255(1) of Cr.P.C. Against that judgment and acquittal the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 1244 of 2004 3 5. The learned counsel for the appellant submitted that the Court below ought to have found that the appellant has proved its case beyond reasonable doubt and ought to have convicted and punished the accused under Section 138 of N.I. Act. The learned counsel for the appellant further submitted that the court below ought to have found that the decision reported in C.G. Dassan v. Ranimol S (2002(2) KLJ 111) is not applicable to the facts of the above case and in that case the cheque was issued in favour of the proprietary concern and the complaint was filed by the proprietor in his name instead of in the name of the concern. Learned counsel for the appellant further submitted that sufficient opportunity was not given to the appellant to adduce evidence in the case and therefore the matter may be remanded to the Court below for giving sufficient opportunity to the appellant to adduce further evidence. The learned counsel for the first respondent supported the judgment of the Court below. 6. In the decision reported in C.G.Dassan (supra), it was held that in case of a complaint filed by the proprietary concern, the Crl.A. No. 1244 of 2004 4 complaint has to establish that he is conducting the business in the name referred in the complaint and the cheque was issued for that concern. 7. PW1 is the Power of Attorney holder of the complainant concern. PW1 deposed that his mother Harkawar Tawari is the Proprietrix of the concern and she has executed Ext.P1 Power of Attorney in favour of him. On going through the evidence adduced on the side of the complainant, it is seen that there is no evidence to establish that Harkiawar Tawari is the Proprietrix of the complainant concern. PW1 admits that he has not seen execution of Ext.P2 cheque by the accused and that he has only hearsay knowledge from one Pratap Singh regarding the execution of the cheque by the accused. The specific case of the accused is that he had transaction with one Sulaiman Sait and Ext.P2 cheque was issued to him in that transaction and that cheque was manipulated by the complainant and filed this case. The accused does not dispute his signature in Ext.P2 cheque. Considering all these aspects of the matter, I am of the view that in the Crl.A. No. 1244 of 2004 5 interests of justice further opportunity must be given to both sides to establish their respective case and for that purpose the case has to be remanded back to the trial court. 8. In the result, this appeal is allowed. The judgment of acquittal of the accused in C.C. No. 103 of 2001 on the file of the Judicial First Class Magistrate Court, Kothamangalam under Section 255(1) Cr.P.C. is set aside and the case is remanded back to that court for fresh disposal in accordance with law, after giving sufficient opportunity to both sides to adduce further evidence. Both parties are directed to appear before the court below on 5.1.2011. Send back the records to the court below immediately. (M.L. JOSEPH FRANCIS) Judge tm