IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.A.No. 740 of 2003() --------------------------------- CC.464/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, THAMARASSERY .................... APPELLANT/COMPLAINANT ---------------------------------------- ABDUL AZEEZ, S/O.MAMU, PARAMBIL HOUSE, VELIMANNA, REP. BY P.A.HOLDER, ABDUL MAJEED .K.K. BY ADV. MR.T.G.RAJENDRAN RESPONDENTS/ACCUSED/STATE ------------------------------------------------- 1. K.P.ABOOBACKER SIDDIQUE, NAMBIPARAMBA HOUSE, MATHOTTAM. 2. STATE REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.GIKKU JACOB. R1 BY ADV. MR.P.VIJAYA BHANU, SMT.T.KAMALA MENON, MR.K.N.BINOJ. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 740 OF 2003 = = = = = = = = = = = = = = = Dated this the 11th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Thamarassery in C.C.464/01. It is the case of the complainant that there was a business communication between the complainant and the accused and the said business was conducted in Kuwait. Without settling the account the accused came to India. After some times the complainant also came to India and negotiated and settled the matter and arrived at a figure of Rs.4,73,228/- as the amount due from the accused to the complainant. It is submitted that a cheque was issued towards the discharge of the said liability which when presented for encashment returned with insufficiency of funds. Notice was issued to which a reply was sent. As no payment was made prosecution was launched u/s 138 of Negotiable Instruments Act. Crl.A. 740 OF 2003 -2- 2. The contention of the accused appears to be that there was business dealings between the accused and the complainant and when they came back to India under the coercion and threat of the complainant a settlement was arrived at whereby the liability was refixed at 3,30,000/-. According to the accused a bus owned by the brother of the accused was transferred for a price of Rs.2,60,000/- without receiving any amount. For the balance Rs.70,000/- an agreement was entered into with a stipulation to pay it in seven equal monthly instalments. At that time the accused was forced to give a blank signed cheque as security and the same had been utilized for the purpose of the case. The trial court on an appreciation of the available materials found in favour of the accused and acquitted him under the provisions of law. It is against that decision the present appeal is preferred. 3. The points that arise for determination in the appeal are; Crl.A. 740 OF 2003 -3- (1) Whether there are materials to hold the accused guilty u/s 138 of the Negotiable Instruments Act? (2) Is there anything to interfere with the decision of the Court below? Points: 4. Heard. It is the case of the complainant that himself and the accused were doing some business at Kuwait which ended in a loss and the accused returned to India without settling the liability. When the complainant came to the native place according to him a negotiated settlement was arrived at whereby an amount was fixed and a cheque was issued towards the discharge of the liability. On the other hand the accused would submit that it is not correct to say that the cheque for that amount covered by Ext.P3 was issued. There was a negotiated settlement for Rs.3,30,000/-. The vehicle of the brother of the accused was transferred and a further agreement was entered for a sum of Rs.70,000/- to be paid in seven monthly instalments. At that time a cheque was given as security. PW1 is the complainant's power of attorney Crl.A. 740 OF 2003 -4- holder. He claims to be the negotiator for settlement of the dispute between the parties and according to him the cheque was issued towards the discharge of the liability. It has also to be remembered that the cheque is dated 31.12.2000. It has been presented for encashment only on 5th June, 2001. In the cross examination he was confronted with two documents, Exts. D1 and D2. Ext.D1 is an agreement of transferring the bus belonging to the brother of the accused in favour of the complainant for a consideration of Rs.2,60,000/-. The accused is a witness therein. Ext.D2 is another agreement whereby it is stated that the accused had borrowed a sum of Rs.70,000/- to be paid in seven monthly equal instalments. The sum and substance of the defence is that after the return from the Kuwait a negotiated settlement of Rs.3,30,000/- was arrived at out of which a bus valued at Rs.2,60,000/- and a agreement for Rs.70,000/- in the form of Exts.D1 and D2 had been executed. When these documents were confronted to the power of attorney holder of the complainant he does not speak anything about it and he only pretends ignorance. It Crl.A. 740 OF 2003 -5- has to be stated that the complainant did not mount the box. The original transaction is between the complainant and the accused that had taken place in Kuwait and it is really the settlement of the business account that has created a liability for the accused. Admittedly the power of attorney holder was not in Kuwait and he does not have any personal knowledge about those transactions. He only states about his mediation. When there is a dispute regarding the claim of a business settlement one would accept some thing to be put in writing to arrive at a figure. One cannot unilaterally or from memory ascertain the liability of a person. Admittedly the accused had left the place in advance and a settlement is arrived at after he came back from Kuwait. Therefore the mere interested oral assertion of PW1 that he was the mediator does not stand to reason or acceptance. If the accused in the case really had run away from the place then under ordinary circumstances a man would not accept a cheque without ascertaining whether it can be encashed or not. So the evidence of PW1 is totally not sufficient. I am conscious of the fact that under law a Crl.A. 740 OF 2003 -6- power of attorney holder is competent to speak provided he has got involvement in the transaction to be proved to the satisfaction of the Court. As stated by me earlier it is lacking in this case. It is true that Exts.D1 and D2 will not give the colour of a settlement so far as the present transaction is concerned. But when the notice was issued the accused had sent a reply and it had been marked in this case as Ext.P9. In Ext.P9 itself the accused had clearly stated about the transaction referred to in Exts.D1 and D2. Therefore it is not a subsequent development after the filing of the complaint. As stated by me earlier about Exts.D1 and D2, as rightly held by the Court below even if there is a presumption it has been rebutted. I do not find any ground to interfere with the decision rendered by the Court below. Therefore the appeal lacks merits and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 740 OF 2003 -7- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 740 OF 2003 = = = = = = = = = = = J U D G M E N T 11th August, 2009