IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 CRL.A.No. 1151 of 2002() ------------------------ ST.6743/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT,IRINJALAKUDA .................... APPELLANT: COMPLAINANT ---------------------- K.A.THOMAS, S/O.ANTHAPPAN, KOONAN HOUSE, GANDHI NAGAR, KODAKARA. BY ADV. SRI.SHEEJO CHACKO RESPONDENTS: ACCUSED AND STATE: ------------------------------------------ 1. C.P.VARGHESE, S/O.POULOSE, CHEMMANCHERRY HOUSE, MARATHAMPILLYKKARA, KODAKARA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.T.N.MANOJ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal.No.1151 of 2002 ========================== Dated this the 18th day of March, 2008 JUDGMENT The complainant in a prosecution under Section 138 of the Negotiable Instruments Act has preferred this appeal challenging the order of acquittal passed by the court below. While acquitting respondent No.1/accused, the court below held that there was no averment in the complaint that the accused had issued Ext.P1 cheque in discharge of a legally enforceable debt or liability. It was further held that there was “no legal proof to find that a demand for payment of the dishonoured cheque” was made by the complainant as stipulated under the statute. 2. A perusal of the complaint will show that the complainant had specifically averred that the accused who was his friend, had borrowed a sum of Rs.35,000/- from him for his business purpose. More importantly it had come out in evidence from Ext.P7 Ledger Extract of the Bank, that the complainant had in fact made the payment to the accused through a cheque. Curiously, the learned Magistrate proceeded to hold that there Crl.A.1151/2002 2 was no money transaction between the complainant and the accused and also that there was no legally dischargeable debt. Further, in Ext.P8 lawyer notice complainant had unambiguously demanded repayment of a sum of Rs.35,000/- advanced by him to the accused while intimating that the cheque issued by the accused had been dishonoured. 3. It is significant to note that the only defence set up by the accused was that the blank signed cheque handed over by him to Sri.Virgin Thomas to be used as security for availing of a loan from the complainant had been misused by the latter to launch the prosecution against the accused. But the accused had not adduced any evidence on his side to substantiate the above contention. Apparently the learned Magistrate had glossed off the relevant materials on record. 4. Having carefully perused the oral and documentary evidence adduced by the complainant, I have no hesitation to hold that the finding entered by the trial court is liable to be set aside. I do so. Resultantly, the accused is found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. But in the peculiar facts and circumstances, Crl.A.1151/2002 3 the case is remitted back to the court below with a direction to impose adequate sentence on accused in accordance with law after affording him an opportunity of hearing. The learned Magistrate shall pass appropriate orders on sentence as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The complainant and the accused shall appear before the court below on June 16, 2008. Appeal is allowed. A.K.BASHEER,JUDGE dvs