IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 CRL.A.No. 2048 of 2003() ----------------------------------- CC.1330/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT/COMPLAINANT ---------------------------------------- K.V.VINODAN, SON OF VELAYUDHAN KOTTAYIL VEEDU, P.O.KUNDALIYOOR, ENGANDIYOOR, CHAVAKKAD TALUK. (REPRESENTED BY POWER OF ATTORNEY HOLDER SUKUMARAN) BY ADV. MR.RAJIT RESPONDENTS/ACCUSED ------------------------------------- 1. T.S.CHANDRAN, THARAYIL INDUSTRIES, P.O.VATANAPPILLY, CHAVAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 2048 OF 2003 = = = = = = = = = = = = = = = Dated this the 17th day of July, 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, Chavakkad in C.C. 1330/98. The learned Magistrate acquitted the accused u/s 255(1) Cr.P.C. holding that the witness namely PW1 is not aware of the transaction and further believed the evidence adduced by the accused in support of the contention that he had joined a kuri, bid it in auction and had paid Rs.3,500/- and towards the security had given a blank cheque. 2. On the contra the case of the complainant is that it is a personal loan taken by the accused for which he had given a cheque towards the discharge of that liability. I had been taken through the evidence of PW1 in this case. It is true that PW1 has stated that he does not know about the original transaction of the borrowal of the amount but he would say that while the cheque was handed over, along with Vinodan Crl.A. 2048 OF 2003 -2- namely the complainant he had also gone and witnessed the same. So one cannot hold conclusively that PW1 is totally unaware of the entire transaction. It is a settled position of law that a power of attorney can give evidence about the transaction if he knows actually about the transaction. Now the learned counsel for the appellant would submit before me that the complainant is prepared to mount the box and give evidence in support of the contention. Just because one had joined a kuri in an establishment of which the complainant is or was a partner one cannot jump to the conclusion that a blank cheque had been given as security for the transaction. Therefore the matter requires further consideration at the hands of the Court. 3. In this case the notice of appeal is served on one Latha, who is said to be the wife of the accused. Therefore I feel that the complainant shall be permitted to take out notice again after he enters appearance so that interest of the accused is also safeguarded. Therefore the appeal is allowed and the order of acquittal is set aside and the case is remitted Crl.A. 2048 OF 2003 -3- back to the Court below for fresh consideration by permitting both the sides to adduce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. The complainant shall appear before the Court below on 28.8.2009 and after he enters appearance he shall again take out notice to the accused for the conduct of further proceedings. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 2048 OF 2003 -4- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 2048 OF 2003 = = = = = = = = = = = J U D G M E N T 17th July, 2009