IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 CRL.A.No. 996 of 2002() ----------------------- CC.295/2001 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT: COMPLAINANT: -------------------------------------------- V.A.NAZIR, S/O. MOHAMMED, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, M.K.GOPINATHAN, S/O. RAVUNNI NAIR, P.O.KARUVAMBRAM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: ACCUSED & STATE: ------------------------------------------------------ 1. T.V.BIJOY, S/O. BHASKARAN T.V., MELE ULLATHIL HOUSE, CHEVAYOOR P.O., KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.GIRI, J. ------------------------- CRL.A.No.996 of 2002 D ------------------------- Dated this the 21st day of August, 2008. JUDGMENT The complainant, in C.C.No.295/01 on the file of the Judicial Magistrate of the First Class, Malappuram, is the appellant herein. 2. The complaint was instituted on the allegation that the accused had borrowed a sum of Rs.1,50,000/- from the complainant in April, 1998 promising to repay the same within one month. He could not repay the amount. But later Ext.P2 cheque was issued on 2.6.1998. The cheque, when presented, was dishonoured on account of “insufficient funds”. Notice was issued. Still, payment was not effected and therefore, the complaint was instituted. 3. The accused appeared before the court below and pleaded not guilty. Though the complaint was filed by the complainant himself, later the complainant was represented through a Power of Attorney holder and the Power of Attorney holder tendered evidence as PW.1. The specific suggestion put forth by the accused in the cross-examination of PW.1 is that the accused had not received any amount from the complainant at any point of time; CRL.A.No.996 of 2002 :: 2 :: that the accused was not acquainted with the complainant and the accused had not issued the cheque to the complainant as alleged. The further suggestion was that there is no person answering to the description of the complainant at all. 4. Later, after the examination of PW.1, the accused filed a petition as Crl.M.P.No.5034/01 seeking permission to examine the original complainant before the court. The same was allowed. Nevertheless, the complainant did not turn up before the court to adduce evidence. 5. The accused had caused the examination of Dw.1, the Postmaster of Malappuram Down Hill Post Office and Ext.D1 was marked through him. Ext.D1 is a letter sent by the defence counsel in the address of the complainant and it was returned with the endorsement “not known, returned to the sender”. Ext.D1 was proved by DW.1. The suggestion put to DW.1 in the course of his cross-examination is that the addressee in Ext.D1 was actually abroad and without taking note of the same, Ext.D1 was returned with the endorsement “addressee not known”. PW.1 asserted that the complainant was in station; that he had plans to go abroad; that his CRL.A.No.996 of 2002 :: 3 :: visa was cancelled in 1999 and he was then currently in station. If this be so, there does not seem to have been any justification whatsoever for the complainant for not appearing before the court in person and tendering evidence, in spite of the application being allowed for examination of the complainant as such. 6. The aforementioned facts were rightly taken note of by the court below in disbelieving the case of the complainant. I do not find my way to disagree with the findings of the court below. For all these reasons, I do not find any merit in this appeal. Accordingly, the same is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge