IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 CRL.A.NO. 941 OF 2001() ----------------------- {S.T.NO.109/94 OF THE CHIEF JUDICIAL MAGISTRATE, MANJERI} APPELLANT(S)/COMPLAINANT: ---------------------------------- P.T.ABDUL REHIMAN, S/O.MOIDEEN, POOZHIKUNNU THANNIPARA HOUSE, P.O.KARUVAMBRAM, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S)/STATE & ACCUSED: ----------------------------------------- 1. P.C.SHOBHANA, W/O.ASARI RAJAN, KONNAMPILLI QUARTERS, P.O.KARUVAMBRAM, VIA NELLIPARAMBA, MANJERI, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- Crl.A.No.941 of 2001 ------------------------- Dated this the 5th day of March, 2009. JUDGMENT The complainant in C.C.No.109/94 on the file of the Chief Judicial Magistrate, Manjeri, is the appellant herein. 2. The accused was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. On an appraisal of the evidence, the court below came to the conclusion that the accused is not guilty of the offence alleged. The court, therefore, proceeded to acquit the accused under Section 255(1) of the Code of Criminal Procedure. This appeal is filed by the complainant against the order of acquittal. 3. I heard Mr.K.M.Sathianatha Menon, learned counsel for the appellant/complainant. Notice has been taken out to the accused initially by the normal mode and thereafter by speed post and by paper publication. There Crl.A.No.941 of 2001 :: 2 :: is no appearance on behalf of the accused. I have, therefore, proceeded to peruse the records and I heard learned counsel for the appellant. 4. The case of the complainant is that the accused borrowed an amount of Rs.40,000/- from the complainant on 10.1.1994 and issued Ext.P1 cheque dated 28.3.1994 in discharge of the said liability. Ext.P6 lawyer's notice was issued and Ext.P8 cover shows that though intimation of the registered letter was served on the accused, she refused to accept the same. Accordingly, after waiting for the statutory period and finding that there is no payment, the complaint was filed. 5. The complainant examined Pws.1 to 5, PW.2 being the complainant himself and PW.5, being the post woman, who had delivered the intimation relating to Ext.P6 lawyer's notice. PW.1 is the bank manager. PW.3 is the post woman since retired. PW.4 is the postmaster. Crl.A.No.941 of 2001 :: 3 :: The evidence which is required to be secured is that of Pws.2 and 5 examined on behalf of the complainant. 6. The accused was examined under Section 313 Code of Criminal Procedure. Going by the suggestion on behalf of the accused during the cross- examination of PW.2 and the version given by the accused herself in the 313 statement, the signature of the accused in Ext.P1 cheque has been admitted. But the transaction as alleged by the complainant is refuted. According to the accused, an amount of Rs.10,000/- was borrowed from the complainant in the month of June, 1993 and a blank cheque was delivered as a security. That, the amount of Rs.10,000/- was repaid in the month of October. But, the complainant withheld the cheque demanding an additional sum of Rs.2,000/-. She did not receive the notice stated to have been sent by the complainant. She was admitted in the Medical College Hospital for delivery, on the date on which she is Crl.A.No.941 of 2001 :: 4 :: alleged to have issued the cheque and that the cheque is not supported by consideration. 7. Though the signature of the accused in Ext.P1 cheque was admitted, it was still the burden of the complainant to prove that the cheque in question was supported by consideration. The court below, with reference to Ext.P1, found that the name and signature of the drawer appearing in Ext.P1 was with ball point pen and the date, and the amount are seen written by using a ball point pen with blue ink with less intensity. It was further held by the trial court that the probability of the accused issuing the cheque to the complainant on 28.3.1994, the date on which she was hospitalised, does not seem to be quite pronounced. The trial court further held that the service of the statutory notice on the accused has not been proved to be effected. For all these reasons, the trial court proceeded to acquit the accused. Crl.A.No.941 of 2001 :: 5 :: 8. Having heard learned counsel for the appellant and having perused the evidence in the case, I am of the view that the issue has not been correctly approached by the trial court. Firstly, the court below has not taken adequate notice of the fact that the accused has admitted that there was a transaction between the complainant and the accused, though a sum of Rs.10,000/- is stated to have been borrowed by the accused from the complainant. Secondly, though the accused had contended that the amount of Rs.10,000/- was repaid, there is no evidence to show the same. No materials have been placed on record to show that after having repaid the amount, there was a demand on the part of the accused for return of the cheque. I further take note of the fact that the service of notice Ext.P6 has been attempted to be proved by the complainant by examining PW.5. PW.5 has affirmed the intimation of the registered letter. This, in my view, could have been Crl.A.No.941 of 2001 :: 6 :: taken as sufficient proof of service of notice as such. I am of the view that the evidence on record has not been correctly appreciated by the court below. In these circumstances, interest of justice demands that the matter be reconsidered by the court below. 9. Accordingly, the appeal is allowed. The order of acquittal is set aside. S.T.No.109/94 on the file of the Chief Judicial Magistrate, Manjeri, is remanded to the said court, for a fresh consideration. It will be open to the complainant to seek permission to adduce fresh evidence, if he is so advised. If an application in that behalf is filed, that will be dealt with in accordance with law by the trial court. Similarly, if the accused is desirous of examining any witness on her behalf and if an application is filed by her, the same shall also be considered by the court below. Fresh orders shall be passed within six months from the date of receipt of a copy of this judgment. Crl.A.No.941 of 2001 :: 7 :: 10. Parties shall appear before the court below on 06.04.2009. Lower Court Records shall be transmitted back to the trial court at the earliest. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge