IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRL.A.No. 1703 of 2003 AGAINST THE JUDGEMENT/ORDER IN CRLP.433/2003 Dated 06/10/2003 CC.70/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT: COMPLAINANT: SASI, S.V.COTTAGE, CHEMBOORA DESOM, KEEZHAROOR VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NARAYANAN THANKAPPAN, KARIKKATTUKUZHY, MELAPUTHAN VEEDU, CHEMBAOORU DESOM, KEEZHAROOR VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL SRI.T.A.PRASANTH RESPONDENTS: STATE & ACCUSED: 1. THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION HIGH COURT OF KERALA, ERNAKULAM. 2. OMANA, D/O. VASUMATHY, KIZHAKKUMKEKARA PUTHEN VEEDU, CHERUNELLIYODU, MANNAMKONATHU, KEEZHAROOR VILLAGE. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1703 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April 2008 JUDGMENT The appellant had prosecuted respondent No.2 herein for the offence punishable under Section 138 of the Negotiable Instruments Act. After considering the oral and documentary evidence adduced by the appellant/complainant, the learned Magistrate held that the complainant had failed to establish the case against the accused and accordingly she was acquitted. 2. The case of the complainant before the trial court was that the accused had borrowed Rs.40,000/- from him and issued Ext.P1 cheque in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory demand notice issued by the complainant was returned unserved, since the accused refused to accept the same. 3. It is pertinent to note that the complaint was filed through the Power of Attorney of the complainant who was examined as PW1 before the court below. Exts.P1 to P7 were Crl.A.No.1703 OF 2003 :: 2 :: marked on the side of the complainant. 4. PW1 in his testimony had categorically stated that he had witnessed the money transaction between the complainant and the accused. He also stated that Ext.P2 cheque was handed over by the accused at the business premises (M/S S.U. Fund) of the complainant. The defence set up by the accused as could be discernible from the cross-examination of PW1 was that a blank signed cheque issued by the accused in connection with the chitty business that was being conducted by the complainant in the name and style of M/S S.U. Fund, was misused for the purpose of launching this prosecution. The accused had not adduced any contra evidence in the case. There was no denial of signature of the accused in the cheque. 5. The learned Magistrate took the view that the failure of the complainant to mount the witness box was fatal to the prosecution case. Yet another reasoning of the learned Magistrate was that in the complaint there was no averment that the accused had not repaid the amount borrowed by him. It was further observed by the learned Magistrate that the averment in Crl.A.No.1703 OF 2003 :: 3 :: the statutory demand notice also indicated that the cheque was not issued on the day when the money was borrowed. 6. I am afraid the reasoning adopted by the learned Magistrate cannot be sustained at all. PW1 had categorically stated that he had been authorised by the complainant to launch the prosecution. He had produced Ext.P1 Power of Attorney authorising him to conduct the case on behalf of the complainant. Accused had not raised any definite defence in the case. The vague contention raised was that he had issued a blank signed cheque in connection with the chitty transaction. The learned Magistrate had overlooked the provisions contained in Sections 118 and 139 of the Act. 7. Having heard learned counsel for the appellant and having perused the materials available on record, I have no hesitation to hold that the findings entered by the learned Magistrate cannot be sustained. Therefore, the order of acquittal is liable to be set aside. I do so. 8. In the peculiar facts and circumstances, I am satisfied that it would be appropriate to remit the case to the trial court for Crl.A.No.1703 OF 2003 :: 4 :: passing appropriate sentence after hearing the accused since she has not appeared before this court though served with notice through special messenger. The court below shall pass appropriate orders on sentence after hearing the accused. This shall be done as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Complainant shall appear before the court below on June 16, 2008. (A.K.BASHEER, JUDGE) jes