IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 CRL.A.No. 847 of 2001() {S.T.NO.5953/1998 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, MALAPPURAM} .................... APPELLANT(S)/COMPLAINANT: T.H.BAIJU, SOUMYA BHAVAN, THIRUNNAVAYA P.O., TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S)/ACCUSED & STATE: 1. K.C.MUSTHAFA, S/O.MOIDEEN, KADAVATH CHERIYA PARAMBIL, PARIYAPURAM, PACHATHRI P.O., TIRUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 SRI.K.M.SATHYANATHA MENON R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.A.No.847 of 2001 ------------------------- Dated this the 11th day of March, 2009. JUDGMENT The complainant in S.T.No.5953/98 on the file of the Judicial Magistrate of the First Class, Tirur, is the appellant herein. 2. The accused was prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. The court below, finding that the evidence was inadequate to convict the accused, proceeded to acquit the accused under Section 255(1) of the Code of Criminal Procedure. Hence this appeal by the complainant, after obtaining leave of this court. 3. The case of the complainant is that the accused had borrowed an amount of Rs.1,40,000/- from the complainant and issued Ext.P1 cheque. The cheque, when presented to the bank, was dishonoured. Ext.P3 lawyer's notice was issued. There was no response thereto. Thereafter the complaint was lodged. CRL.A.No.847 of 2001 :: 2 :: 4. The complainant was examined as PW.1. The trend of the cross-examination of PW.1 is that the accused had denied the transaction in its entirety. The explanation on behalf of the accused for the complainant being in possession of the cheque is that an unsigned blank cheque leaf was handed over by the accused to one Sivaraman and the complainant would have come into possession of the same. The complainant affirmed that the accused had brought a signed cheque leaf and handed over the same. 5. Learned counsel for the appellant contended that what is crucial is not sending any reply to the notice. Moreover, no tenable explanation is offered by the accused for not responding to the reply notice. He merely contended that his wife was admitted in the hospital. No records were produced to show that it was actually so. 6. Learned counsel for the accused contended that the complainant had the burden to prove that the cheque was executed and issued by the accused, but the same has not been done. I would have normally accepted this contention, but for the fact that no reason whatsoever is given for not sending any reply. It is noteworthy to note CRL.A.No.847 of 2001 :: 3 :: that the complainant was a total stranger according to the accused. But, according to the complainant, he and the accused had known each other for 9 years. If the accused had a case that the cheque leaf had been entrusted to one Sivaraman and the complainant came into possession of the cheque from him, the best evidence possible was to examine the said Sivaraman as a witness. No such attempt was made. The complainant, when he was examined, stated that one of his neighbours Sri.Gopakumar is a witness to the lending of money to the accused and issuance of the cheque by the accused. But Sri.Gopakumar was also not examined as a witness. Therefore, I am of the view that the matter requires reconsideration by the court below. The parties must be given a chance to lead additional evidence. Accordingly, the appeal is allowed, the order of acquittal is set aside and S.T.No.5953/98 is remitted back to the trial court for fresh disposal. It is up to the parties to lead any additional evidence and if additional evidence is let in, obviously, the court below shall again record the statement of the accused under Section 313 of the Code of Criminal Procedure on such additional evidence. Fresh CRL.A.No.847 of 2001 :: 4 :: orders may be passed within six months from the date of receipt of records from this court. The lower court records shall be re-transmitted to the trial court at the earliest. The parties shall appear before the court below on 06.04.2009. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge