IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 295 of 2003() --------------------------------- ST.4042/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT(S): COMPLAINANT: -------------------------- MADHU THAYYIL, S/O. NARAYANAN KUTTY, MANJU VIHAR, AYYANTHOLE, THRISSUR. BY ADV. MR.M.B.PRAJITH RESPONDENT(S): ACCUSED: ----------------------- PUSHPAN, S/O. RAMAN KUTTY, MANAPARAMBIL HOUSE, WEST KOMBARA, NEAR S.T. JOSEPH COLLEGE, IRINJALAKKUDA, THRISSUR. BY ADV. MR.C.K.RAMAKRISHNAN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.295 OF 2003 ------------------------------ Dated this the 18th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the JFCM-I, Thrissur in S.T.No.4042/1999. It is the case of the complainant that the accused had borrowed a sum of Rs.1,50,000/- and towards the discharge of the liability, had issued a cheque bearing date 26.11.1998, which when presented for encashment was returned with the endorsement of insufficiency of funds. After giving due notice and as the amount was not paid, prosecution has been initiated. The case of the defence appears to be that he had joined in a kury and bid it in an auction and for receipt of the bid amount, he had given a signed blank cheque as security which had been used by the complainant to file this complaint. The trial court was not satisfied with the evidence regarding the execution of the cheque and therefore had acquitted the accused under Section 256(1) of the Cr.P.C. It is against that decision, the present appeal is filed. The points that arise for determination are (1) whether the court below was justified in 2 CRL.A.NO.295/2003 holding that the execution of the cheque is not proved (2) Is there anything to interfere with the decision rendered by the trial court. 2. Points 1 and 2: Learned counsel for the appellant persuasively and very vehemently contended before me the following propositions. It is his case that since the signature in the cheque is admitted and the evidence of PW1 is acceptable and execution of Ext.P1 is proved and in the absence of any evidence to rebut the presumptions under the provisions of the N.I.Act, the accused is liable to be convicted under Section 138 of the N.I.Act. At the outset, I may like to point out that the accused has never admitted the execution of Ext.P1 cheque as such. He had only stated that he had given a blank signed cheque as security for receiving the amount in a kury auction. When the complainant was confronted with this evidence while adducing the evidence before the court, he takes the stand of not remembering anything with respect to the accused, joining the kury or bid it in auction, the relevant date etc. It is suggested to the complainant that he had 3 CRL.A.NO.295/2003 misused the blank signed cheque given as security for the transaction. So, the objective of this case should be to find out the preponderance of probabilities so far as it relates to the kury transaction is concerned. Neither the complainant nor the accused had produced any documents to show regarding the kury transaction. In order to probabalise the case of the accused, if there is some evidence either coming from the side of the accused or the complainant with respect to the disbursal of the amount in the kury conducted, the court would have been in a better position to assimilate truth and pass appropriate orders. But unfortunately it is not done in this case and therefore, I am now inclined to grant an opportunity to the complainant to produce the documents before the court to substantiate his case and if the accused wants as he cannot be compelled, he may also produce documents to convince conscience of the court what is the transaction. I do not express anything further. Therefore the order of acquittal passed under Section 256(1) Cr.P.C is set aside and the matter is remitted back to the court below with a direction to permit both the complainant as well as the accused to produce 4 CRL.A.NO.295/2003 documentary evidence and also to adduce oral evidence in support of their respective contentions and dispose of the matter in accordance with law. The parties are directed to appear before the court below on 3.8.2009. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.295/2003 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.295 OF 2003 ------------------------------ 18th day of June, 2009 JUDGMENT 6 CRL.A.NO.295/2003