IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 CRL.A.No. 713 of 2001(C) ------------------------ CC.4/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE .................... APPELLANT/COMPLAINANT: -------------- M/S. GLOBAL TRADERS, BEYPOR NORTH P.O, CALICUT-15 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, K. PRADEEP KUMAR. BY ADV. SRI.DEVAN RAMACHANDRAN RESPONDENTS/ACCUSED: --------------- 1. MR. RAJEENDRAN, K.S.E.B, POOKKAD, CALICUT. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR BY P.P.SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.No.713 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. He impugns the order of acquittal of respondent No.1 by the trial court holding that Ext.P1 cheque was not issued by respondent No.1/accused in discharge of a legally recoverable debt. 2. The case of the appellant/complainant was that respondent No.1/accused had issued Ext.P1 cheque for a sum of Rs.15,650/- towards the price of engine oil purchased by him. But, when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. A statutory demand notice issued by the complainant was returned by the postal department with the endorsement 'refused'. 3. The complainant was examined as PW1 and the Bank Manager was examined as PW2. Exts.P1 to P8 were also marked on the side of the complainant. One witness was examined on the side of the defence as DW1. Exts.C1 and C2 2 CRL.A.NO.713/01 were marked as court exhibits in the case. 4. The defence set up by the accused was that he was not the person mentioned in the complaint. He had had no business transaction with the complainant as alleged in the complaint and therefore, there was no liability to be discharged by him to the complainant. According to the accused, one of his friends by name Manu Kumar, who was examined as DW1 in the case, had some business transaction with the complainant. On a request made by Sri. Manu Kumar, the accused had handed over a blank signed cheque from his account for the purpose of the business of the former. The accused contended that the said blank signed cheque was the subject matter of the prosecution. In short, the contention of the accused was that he was not liable to be prosecuted on the strength of Ext.P1 cheque since there was neither a legally enforceable debt as contemplated under Section 138 of the Act nor was Ext.P1 cheque supported by any consideration. 5. The trial court accepted the above version and acquitted the accused. The short question that arises for consideration is whether the above order of acquittal is liable 3 CRL.A.NO.713/01 to be sustained or not. 6. It is true that the accused was described in the cause title of the complaint as Rajeendran, Kerala State Electricity Board, Pookkad, Calicut District (Koyilandy Police Station limit). The case of the accused was that his name was Rajendran and not “Rajeendran” as described in the complaint. But the accused had engaged a counsel and defended himself. Significantly, the accused admitted that Ext.P1 cheque was issued from the account maintained by him in the South Malabar Gramin Bank, Koyilandy branch. PW2, the Manager of the branch, had also stated before the court that Ext.P1 cheque issued by the account holder (Rajendran) was dishonoured due to insufficiency of funds in the account. In other words, it was the admitted position that respondent No.1 herein, namely Rajendran, though described as Rajeendran in the complaint, had issued Ext.P1 cheque, which on presentation was dishonoured due to insufficiency of funds in the account. Having regard to the oral and documentary evidence available on record, I am satisfied that the contention raised by respondent No.1/accused that it was a 4 CRL.A.NO.713/01 case of mistaken identity cannot be sustained. 7. The other contention raised by Rajendran was that his friend Sri.Manu Kumar had taken a blank signed cheque from him for the purpose of his business and it was the said cheque leaf which was the subject matter of the prosecution. It is true that Sri. Manu Kumar was examined in the case as DW1. He gave evidence in tune with the above contention raised by the accused. But, it has to be noticed that the specific case of the complainant was that the accused had purchased engine oil from him and it was in discharge of the said liability that Ext.P1 cheque was issued by him. The accused had never bothered to step into the witness box and deny the above assertion made by the complainant. In my view, in the peculiar facts and circumstances of the case, the complainant is entitled to get the benefit of presumption available under Section 118 and 139 of the Act. The accused had totally failed to discharge the burden cast on him. 8. As mentioned earlier, the accused had admitted his signature in Ext.P1 cheque. Moreover, he had refused to accept the statutory demand notice. All the above facts and 5 CRL.A.NO.713/01 circumstances would indicate that the attempt of the accused is to frustrate the complainant and thereby get out of the clutches of law. The learned magistrate, in my view, was not at all justified in overlooking the statutory provisions dealing with the presumption under the Act. The accused, having failed to discharge the burden cast on him in a prosecution under the Act, is not entitled to be acquitted. In that view of the matter, the order of acquittal passed by the trial court is set aside. Respondent No.1/accused (Rajendran) is found guilty under Section 138 of the Act and he is accordingly convicted. 9. Though the accused has been served with notice, he has not appeared either in person or through counsel. 10. Therefore, the case is remitted back to the court below for passing appropriate sentence on the accused in accordance with law after hearing him. The trial court shall dispose of the case as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The complainant shall appear before the trial court on 6 CRL.A.NO.713/01 December 30, 2008. (A.K.BASHEER, JUDGE) cl 7 CRL.A.NO.713/01 A.K.BASHEER, J. CRL.A.No.713 OF 2001 JUDGMENT 3rd December, 2008