IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 CRL.A.No. 2026 of 2003(D) --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.388/2003 Dated 24/09/2003 CC.162/1999 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... APPELLANT/COMPLAINANT : --------------------------------- E.PRAKASHAN, S/O.LATE GOVINDAN, LAKSHMI HOUSE, P.O.KARAPARAMBA, THADAMPATTUTHAZHAM, VENGERI AMSOM DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS/IST ACCUSED : ------------------------------------- 1. T.K.SATHY KUMAR, S/O.ACHUTHAN VAIDYAR, PANDARAKANDIYIL PARAMBA HOUSE, PUTHIYANGADI P.O. PUTHIYANGADI AMSOM AND DESOM, KOZHIKODE. 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM. BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pac A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.2026 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of April 2008 JUDGMENT The complainant in a prosecution under Section 138 of the Negotiable Instruments Act has preferred this revision petition challenging the order of acquittal of respondent No.1 passed by the trial court. The learned Magistrate found that the complainant had not succeeded in proving the charge against the accused and that the defence version given by the accused was more probable. 2. The case of the complainant before trial court was that the accused had borrowed Rs.70,000/- from him on June 7, 1998 with the assurance that it would be repaid very soon. On a demand made by the complainant the accused issued Ext.P1 cheque dated August 3, 1998 towards discharge of the above liability. But the cheque was dishonoured, when it was presented for encashment due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued, the accused did not pay off the liability. Crl.A.No.2026 OF 2003 :: 2 :: 3. The complainant was examined as PW1 and Exts.P1 to P7 were marked on his side. His witnesses were examined as PWs2 and PW3. Exts.D1 and D2 were marked on the side of the defence, though there was no oral evidence. 4. The defence set up by the accused as revealed from Ext.D1 reply notice sent by him in response to the statutory demand notice, was that he had had no money transaction with the complainant. He had not borrowed Rs.70,000/- and issued Ext.P1 cheque as alleged in the complaint. But according to him, he had borrowed a sum of Rs.5,000/- from Ramadasan, S/o Velayuthan to be repaid on daily instalment basis. At that time, he had handed over a signed blank cheque to Ramadasan as security for the above loan. Though he had repaid the entire amount to Ramadasan, he did not return the signed blank cheque. According to the accused, the complainant had launched this prosecution against him misusing the said blank cheque which was handed over to Ramadasan. 5. It had come out in evidence that Ext.P1 cheque was presented for encashment in the Bank through the account of the Crl.A.No.2026 OF 2003 :: 3 :: complainant in December 1998. The cheque was returned to the complainant after dishonour along with Ext.P2, memo dated December 15, 1998. The complainant had issued Ext.P3 lawyer notice on December 19, 1998. Ext.P4 postal receipt also showed the above date of despatch. Ext.P5 acknowledgment card dated December 24, 1998 revealed that accused had accepted the notice. But the learned Magistrate noticed that in the statutory demand notice, the complainant had mentioned that he had received the cheque after dishonour from the Bank along with the memo on August 17, 1998. Obviously, the said date (month was wrongly mentioned as August instead of December) mentioned in the lawyer notice was a mistake, as rightly pointed out by the learned counsel for the complainant. All other documents like Exts.P2, P3, and P4 would show that the cheque had been presented and dishonoured in December and lawyer notice was also issued in December immediately after dishonour. The court below was not justified in placing reliance on this typographical error in the lawyer notice. Learned Magistrate had also noticed that the name of the accused in the relevant ledger Crl.A.No.2026 OF 2003 :: 4 :: extract was slightly different. But, I do not propose to make any further comment on the said aspect at this stage in view of the order that I propose to pass. For the reasons stated above, the order of acquittal passed by the court below cannot be sustained and I am satisfied that the said order is liable to be set aside. I do so. The court below shall dispose of the case in accordance with law after affording further opportunity to both sides, to adduce evidence if such a request is made. (A.K.BASHEER, JUDGE) jes