IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 CRL.A.No. 240 of 2001() {S.T.NO.42/1998 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE} .................... APPELLANT: -------------------- M/S.BENHUR TRADES AND INVESTMENTS (P) LTD., SIMAL BUILDING, KANDAMKULAM CROSS ROAD, CALICUT, REPRESENTED BY ITS BRANCH MANAGER, POWER OF ATTORNEY HOLDER SRI.E.VIJAYAN, S/O.NARAYANAN. BY ADV. SRI.S.RAJEEV RESPONDENT: ------------------------ K.V.SHAJI, S/I.K.V.VASU, CITY COMMUNICATION SERVICE, REGENCY BUILDING, M.M.ALI ROAD, CALICUT. BY ADV. SRI.R.SUDHISH SMT.M.MANJU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- Crl.A.240 of 2001 A ------------------------- Dated this the 18th day of August, 2008. JUDGMENT The complainant in S.T.No.42/98 on the file of the Chief Judicial Magistrate, Kozhikode, which arises from a complaint under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}, is the appellant herein. 2. The complainant had floated a chitty as a foreman and the accused was the subscriber to the said chitty. One of the Kuri was prized by the accused and the prize amount was received as well. But, later, there was default in the payment of the instalments of the chitty and according to the complainant, Ext.P1 cheque dated 28.11.1997 was issued for an amount of Rs.62,500/- for repayment of the defaulted instalments. The cheque, when presented, was dishonoured. Notice for payment was not responded to and hence the complaint was lodged. 3. The Power of Attorney Holder of the chitty company was examined as PW.1. Ext.P1 cheque, Ext.P2 dishonour memo, Ext.P3 lawyer notice and Ext.P4 acknowledgment were marked Crl.A.240 of 2001 :: 2 :: through PW.1. Apparently, the defence taken up by the accused was that Ext.P1 cheque was issued as a security at the time when the prize amount was received by him from the foreman of the chitty and this is evidenced by the fact that the amount repayable by way of additional instalments at the time of Ext.P1 cheque was only Rs.60,000/-, whereas the cheque was for an amount of Rs.62,500/-. 3. After the examination of the complainant and closure of the prosecution evidence, the case was posted for examining the accused under Section 313 of the Cr.P.C. The accused then filed two applications, one was filed in July, 2000 for recalling PW.1. That was allowed. PW.1 was recalled and examined. Later, another application was filed by the accused for again recalling the person examined as PW.1 to be examined as a defence witness. Apparently, this request made by the accused was allowed by the court below and the Power of Attorney holder of the complainant company Sri.E.Vijayan was recalled and permitted to be examined as DW.1. Crl.A.240 of 2001 :: 3 :: 4. On the basis of the evidence so adduced, the court below proceeded to find that there is inadequate evidence from the side of the complainant to find that the accused has committed the offence under Section 138 of the Act. The court below also found that even going by the evidence of DW.1, the amount payable by the accused did not tally with the amount shown in Ext.P1. It is further noted by the court below that the complainant has not produced the account books to show the transaction. Accordingly, the accused was acquitted under Section 255 Cr.P.C. 5. I heard learned counsel for the appellant and the learned counsel for the respondent. 6. Learned counsel for the appellant submitted that the procedure adopted by the court below in permitting the Power of Attorney holder of the complainant, who was already examined as PW.1, to be again examined as DW.1, was clearly illegal. Reference in this regard is made to the judgment of this court reported in Kamarudheen v. Shoukkathali {2001(3) KLT Crl.A.240 of 2001 :: 4 :: 476}. The said procedure was frowned upon by this court in the said decision. The law laid down therein is applicable to the present case also. The evidence tendered by DW.1 as such is liable to be eschewed from consideration and if that is so, the basis of the finding entered into by the court below is unsustainable. In fact, inadequacy of the evidence tendered by the complainant, has been found by the court below to find that there is no satisfactory evidence on the part of the complainant to prove that the amount shown in Ext.P1 is the amount actually due from the accused on the date of Ext.P1. But, in arriving at such a conclusion, the court below has expressly referred to the evidence of Dw.1. In my view, the procedure adopted by the court below is clearly unsustainable. For all these reasons, the appeal is allowed. The judgment of the court below is set aside and the matter is remitted back to the court below for fresh disposal. It is made clear that further proceedings need be commenced only from the stage at which the statement of the accused under Section 313 Cr.P.C is recorded. Crl.A.240 of 2001 :: 5 :: The accused shall be entitled to tender evidence on his behalf. In the facts and circumstances of the case, if the accused renews his request for recalling PW.1, then the court below should consider such plea and then proceed with the further trial of the complaint as such. The court below shall strive to dispose of the complaint as early as possible, taking note of the fact that the complaint is of the year 1997. The parties shall appear before the court below on 6.10.2008. Send back the records to the court below forthwith. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge