IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 CRL.A.No. 1065 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.355/2004 Dated 14/06/2004 CC.963/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT(S): COMPLAINANT ------------------------- RAMAKRISHNAN, S/IO.KANARA RAMAN, THANYAM VILLAGE, THANYAM DESOM, PERINGOTTUKARA P.O., THRISSUR DIST. BY ADV. SRI.K.A.SATHEESA BABU RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SAFEENA SATHAR, W/O.SATHAR, OLAVAKKODE HOUSE,KIZHUPPILLIKKARA POST, THRISSUR DIST. ADV. SRI.M.B.PRAJITH FOR R2 PUBLIC PROSECUTOR SRI.SABU SREEDHAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C.HARI RANI,J. * * * * * * * * * * * * * Crl.A.No.1065 of 2004 ---------------------------------------- Dated this the 23rd day of June 2011 J U D G M E N T The complainant in C.C.No.963/2001 on the file of the learned Judicial First Class Magistrate Court-II, Thrissur is the appellant. The appellant preferred the complaint against the accused/2nd respondent herein alleging offence under Section 138 of the Negotiable Instruments Act. As per judgment dated 17/4/2004, the learned Magistrate dismissed the complaint and acquitted the accused under Section 255(1) Cr.P.C. That judgment has been challenged by the appellant/complainant in this appeal. 2. The allegations in the complaint in brief are as follows: The complainant was doing the business of selling cement. The accused had purchased cement from the complainant on various occasions for the construction of the house of the accused. The total price of the cement purchased by the accused was Rs.1,19,150/-. The accused paid Rs.34,150/- and for the balance amount, the accused gave Ext.P1 cheque dated Crl.Appeal No.1065/04 2 17/02/2001 for Rs.85,000/- drawn on her account in Thanyam Panchayat service Co-operative Bank Ltd., Kizhuppillikkara, Thrissur. That cheque, when presented for collection before the bank, was returned with endorsement 'insufficient fund'. The complainant issued lawyer notice (copy of which was marked as Ext.P4) demanding the cheque amount which was accepted by the accused on 30/03/2001 evidenced by Ext.P6 postal acknowledgment. The accused did not pay the amount nor sent any reply to the lawyer notice. Thereafter, the complainant preferred the private complaint before the learned Magistrate on 11/5/2001 which was taken cognizance by the lower court. The accused entered appearance before the lower court on receipt of summons. Evidence was adduced by the complainant. PW1 was examined and Exts.P1 to P6 were marked. No evidence either oral or documentary has been adduced on the side of the defence. Considering the evidence adduced in this case, the learned Magistrate acquitted the accused under Section 255(1) Cr.P.C. 3. Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent. Heard the learned Public Crl.Appeal No.1065/04 3 Prosecutor also. 4. It is argued by the learned counsel for the appellant that the reasons stated by the lower court to acquit the accused is manifestly wrong and hence unsustainable. The accused did not send reply to the lawyer notice sent by the complainant and did not adduce any evidence before the court. The accused did not state any circumstance as to how the cheque in her account happened to be in the possession of the complainant. On the other hand, it is argued by the learned counsel for the 2nd respondent/accused that the signature in the disputed cheque Ext.P1 was specifically denied by the accused. The trend of cross-examination of PW1 and in the 313 statement etc. are to the effect that there are differences in the signature and in the handwriting and that there was no transaction between the complainant and the accused whatsoever. 5. On a perusal of the judgment of the lower court, it is evident that much importance has been given by the learned Magistrate regarding the difference in the name of the accused mentioned in the complaint and in the lawyer notice and the name of the accused elicited in the deposition of PW1 before Crl.Appeal No.1065/04 4 court. The correct name of the accused is Shafeena whereas the transactions elicited in the cross-examination of PW1 was Safiya. Thus, according to the learned counsel for the 2nd respondent, there was no transaction between the complainant/PW1 and the accused and the actual transaction was between Safiya and the complainant. Both counsel submitted that chance may be given to the complainant as well as to the accused to adduce further evidence to substantiate their contentions. It is true that some discrepancy with regard to the name of the accused and the name elicited in the cross-examination of PW1 is there which is evident from the reading of the deposition itself. To clarify that mistake, if any, as pointed out by the learned counsel for the complainant/appellant and also to adduce further evidence both oral and documentary, if any, by both sides, I am inclined to remand this case to the lower court. 6. Accordingly, this Crl.A is allowed and the impugned judgment dated 17/04/2004 in C.C.No.963/2001 is set aside and this case is remanded for fresh disposal. The lower court is directed to give reasonable time to the complainant/appellant and the second respondent/accused to adduce further evidence Crl.Appeal No.1065/04 5 both oral and documentary and also to recall PW1 for further examination, if a prayer to that effect has been made by any of the parties. The parties are directed to appear before the lower court on 25/7/2011. The learned Magistrate is directed to dispose of the case at the earliest, at any rate, within a period of three months from the date of receipt of the records in this case. Send back the records to the lower court immediately. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.Appeal No.1065/04 6 Crl.Appeal No.1065/04 7 M.C.HARI RANI, J. .No. of 200 ORDER/JUDGMENT 29/07/2009