IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 CRL.A.No. 872 of 2003() ----------------------- CC.542/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT(S): --------------------- MANIKANTAN NAIR, S/O.GOPINATHAN NAIR, POOVANAMVILA VEEDU, MATHRA MURI, KARAVALUR VILLAGE. BY ADV. SRI.G.P.SHINOD RESPONDENT(S): ------------------------- 1. BALAN PILLAI, S/O.SANKARA PILLAI, SAROJINI MANDIRAM, MADANTHACODU, KAREEPRA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK N.K.BALAKRISHNAN, J ----------------------------------------- Crl.Appeal No. 872 OF 2003 ---------------------------------------- Dated this the 2nd day of August, 2011. JUDGMENT The complainant before Judicial First Class Magistrate Court-III, Punalur, is the appellant. The complaint was filed by him alleging offence under Section 138 of the Negotiable Instruments Act. The accused was acquitted by the learned Magistrate holding that the complainant failed to prove that the signature appearing on Ext.P1 was the signature put by the accused. 2. The case of the complainant/appellant is that the accused had borrowed a sum of Rs.70,000/- on 27.3.2000 and to discharge that debt Ext.P1 was issued. It was presented for encashment. It was bounced due to insufficiency of funds. On receipt of the intimation from the bank, notice under the proviso (b) to Section 138 of Negotiable Instruments Act was sent. But the postal acknowledgment was not got back nor was any reply Crl.Appeal No. 872 OF 2003 2 sent by the accused. 3. The complainant got himself examined as PW1 and Exts.P1 to P5 were marked. No evidence was adduced on the side of the accused. 4. The learned Magistrate acquitted the accused mainly on the ground that signature appearing on Ext.P1 was not proved to be that of the accused. The defence taken by the accused is that there was some transaction between his son Anilkumar and PW1 in respect of a tempo van and that his son Anilkumar misused the cheque leaf of the accused, by signing the same and handed it over to the complainant and that making use of that cheque the complaint was filed against the accused. 5. Learned Magistrate also found that Ext.P4 notice was sent out of time. Ext.P5 is the postal receipt. The learned counsel for the appellant would submit that with regard to the sending of notice the view taken by the learned Magistrate is incorrect. The intimation regarding the Crl.Appeal No. 872 OF 2003 3 dishonour of cheque was received by the complainant only on 29.4.2000 as evidenced by Ext.P3 memo issued by the complainant bank. Ext.P2 is the dishonour memo dated 19.4.2000. Since the intimation was given to the complainant only as per Ext.P3 dated 29.4.2000, the time stipulated under the proviso (b) to Section 138 would start only from that day. Notice was sent on 6.5.2000 as evidenced by the postal receipt dated 6.5.2000. The notice was sent within the period of 15 days stipulated as per the proviso. The complaint was also filed within time. As such the procedural formalities are seen duly complied with. 6. The crucial point for consideration is whether cheque Ext.P1 was actually signed and issued by the accused. Admittedly, the cheque was drawn on the cheque leaf issued by the bank (drawn on his account). Though a case was advanced by the accused that his son has misused his(accused's) cheque leaf that remained in the realm of suggestion alone. No other convincing material was adduced Crl.Appeal No. 872 OF 2003 4 by the defence. It is true that the burden is on the complainant to prove that cheque in question was actually signed and issued by the accused. The learned counsel for the appellant would submit that the cheque was bounced with the endorsement “Fund insufficient” and there was no endorsement, “signature differs”. The learned counsel further submits that complainant should have taken steps to summon the bank Manager to produce the account opening form and the specimen signature card etc. which would have shown the signature of the accused. There was no attempt to compare the signature of the accused found on Ext.P1with the admitted signature of the accused, which may appear in the Vakkalath and other records of the court. The learned counsel submits that such lapses in the conduct of the case cannot be taken to non-suit the poor complainant. The learned counsel requests that the complainant may be given an opportunity to adduce further evidence in the matter as otherwise failure of justice would Crl.Appeal No. 872 OF 2003 5 be the result. 7. Though the accused/respondent was served nobody appeared to resist the submission made by the learned counsel for the appellant. On going through the evidence and circumstances I find it just and proper that complainant/appellant should be given an opportunity to adduce further evidence in the matter and as such order of acquittal is to be set aside. In the result, the impugned judgment of acquittal is set aside and learned Magistrate is directed to dispose of the matter afresh after giving opportunity to both sides to adduce further evidence. Both sides will appear before the Judicial First Class Magistrate Court-III, Punalur on 26.8.2011. N.K.BALAKRISHNAN, JUDGE mns