IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 CRL.A.No. 304 of 2002() ----------------------- ST.5489/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT: ------------------------------------ VARGHESE, S/O. CHACKO, POZHATHUPARAMBIL HOUSE, IRINJALAKUDA. BY ADV. MR.P.B.SAHASRANAMAN MR.K.JAGADEESH MR.T.S.HARIKUMAR RESPONDENTS :ACCUSED & STATE: ------------------------------------------- 1. P.A. VARGHESE, S/O. ANTONY, PAYAMMEL HOUSE, NADAVARMABA, IRINJALAKUDA, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MS. K.L. LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON 12/02/2009 DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. .Appeal No. OF 2009 ~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of February, 2009 JUDGMENT The complainant is the appellant herein. He challenges the judgment dated 12.12.2001 in S.T. No. 5489 of 1998 of the Court of the Judicial First Class Magistrate, Irinjalakuda, by which learned Magistrate acquitted the accused under Section 255(1) of Cr.P.C in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act at the instances of the appellant/complainant. 2. The case of the complainant/appellant is that the accused issued cheque for Rs.60,000/- in favour of the complainant towards discharge of the debt due from the accused and the cheque was given at the residence of the complainant. When the cheque in question presented for encashment, it was returned as per Ext.P2 memo stating the reason 'funds insufficient'. Therefore, according to the complainant by sending Ext.P3 lawyer notice, accused was demanded payment of the amount. According to the complainant, accused received the notice on 28.4.1998 but no amount was paid and hence he approached the court below for filing the complaint on 8.6.1998. On the basis of Crl. Appeal No. 304 of 2002 : 2 : the sworn statement of the complainant, S.T. 5489 of 1998 was instituted on 8.6.1998. When the accused appeared, particulars of allegations in the complaint were read over and explained to him. But he pleaded not guilty. Subsequently, the complainant adduced evidence by examining himself as PW1 and also producing the documents such as Ext.P1 to Ext.P7. When the accused questioned under Section 313 of Cr.P.C., he denied the allegation and also all incriminating circumstances brought on record. It is also the case of the accused that actually a sum of Rs.4500/ was due to the complainant and that on 20.4.1998 the said amount was agreed to be paid and it was also endorsed to the Circle Inspector of Police. No evidence was adduced from the side of the defence. On the basis of the rival pleadings and materials, the court below framed 6 points for its consideration. First point was whether Ext.P1 was issued in discharge of liability as alleged and the second point is whether Ext.P1 was dishonoured for want of sufficient funds in Ext.P6 account. The third question is that whether accused was demanded payment of amount covered in Ext.P1. The consequent 4th question is that whether accused failed to pay the amount. Finally, the finding of the trial court in point No.1 and 2 were in favour of the complainant. But, the Crl. Appeal No. 304 of 2002 : 3 : finding on point No.3 was in favour of the accused and against the complainant. According to the trial court the there is no legal proof on the fact that accused was demanded payment of bounced cheque. In point No.4 it is found that amount was not paid by the accused and hence finding was against the accused. But on the strength of finding under point No.3, the trial court held that accused is liable to be acquitted and accordingly he is acquitted under Section 255(1) of Cr.P.C. It is the above finding under the point No.3 and the order of acquittal are challenged in this appeal. 3. I have heard Mr. P.B. Sahasranaman, the learned counsel appearing for the appellant. Though notice was served on the first respondent he has not chosen to appear before this Court or to make any arrangement to defend the appeal. 4. The learned counsel submitted that the complainant, when examined as PW1, has categorically stated regarding the sending of notice and the failure of the accused in making the payment even after the receipt of the demand notice. Ext.P3 is the office copy of the lawyer notice issued to the accused. Ext.P4 is the postal receipt of issuance of Ext.P3 and Ext.P5 is the postal acknowledgment card for receipt of Ext.P3 notice. Thus, according to the learned counsel, the complainant Crl. Appeal No. 304 of 2002 : 4 : has substantiated his case regarding demand, by giving evidence as PW1 as well as by producing the documentary evidence such as Ext.P1 to Ext.P7, particularly Ext.P3 to Ext.P5 and therefore the order of the court below is liable to set aside. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant and also perused materials on record. As indicated earlier, cheque in question is covered for an amount of Rs.60,000/-. The trial court has already found in favour of the complainant that Ext.P1 was issued in discharge of liability due to the complainant by the accused. It has also found that Ext.P1 cheque was dishonoured for want of sufficient funds in Ext.P6 account of the accused. Thus except regarding the demand contemplated by Section 138 of the Negotiable Instruments Act, all other ingredients to the said section has established and the trial court found this point in favour of the complainant. 6. While discussing the point No.3 in paragraph 9 of the impugned judgment, the learned Magistrate observed that for launching of prosecution under Section 138 of the Negotiable Instruments Act, it cannot be disputed that demand for payment of the dishonoured cheque might have given to the accused. It is Crl. Appeal No. 304 of 2002 : 5 : also observed that in the complaint it is averred after the dishonour of cheque for want of sufficient funds in Ext.P6 account demand for payment of amount was made on 24.4.98. According to the learned Magistrate it has to be considered whether any proof was adduced on this aspect. According to the learned Magistrate when PW1 was examined what he has spoken to is on 27.4.1998 a lawyer notice has been sent after the dishonour of Ext.P1 cheque as per Ext.P2 memo. Ext.P4 is the postal receipt. Thus, the learned Magistrate held that such version will not amount to proof of the fact that accused was demanded for payment of bounced cheque. The above approach and finding of the court below appears to be arbitrary and illegal. In paragraph 5 of the complaint, it is specifically pleaded; “That your petitioner issued registered lawyer notice on 27.4.1998 calling up the accused to pay up the cheque amount failing which legal actions will be initiated under Section 138 of the Negotiable Instruments Act. Accused received the notice on 28.4.98. Accused till this date does not care to clear the liabilities”. Even before filing of the complaint, the complainant caused to sent lawyer notice on 27.4.4998. It is marked as Ext.P3 during the trial. Going by Ext.P3, it can be seen that after stating the factual Crl. Appeal No. 304 of 2002 : 6 : details which lead to the issuance of Ext.P1 cheque for Rs.60,000/-, it is clearly stated the subsequent development including presentation of the cheque, its dishonour and also stated consequence thereof. Thus in 3rd paragraph of Ext.P3 it is stated; “When my client presented the cheque for collection through your bank, But your bank has dishonoured the cheque stating the reason “funds insufficient” on 24.4.1998”. Besides the above, when the complainant was examined he had categorically stated about the transaction and the issuance of the cheque, presentation of the same, dishonour of cheque and also he stated “ “. Thereafter, he further stated that Thus going by the complaint, Ext.P3 notice and also deposition of PW1, complainant, it can be seen that complainant has discharged his duty proving all the required facts in support of his allegation. Crl. Appeal No. 304 of 2002 : 7 : 7. Section 59 of the Evidence Act deals with proof facts by earlier evidence. The above section comes under chapter IV with the title of 'oral evidence'. Thus Section 59 runs “all facts, except the contents of documents or electronic records may be proved by oral evidence. If that be so, when Exts.P3, P4 and P5 documents before the court, the complainant PW1 need not depose regarding the contents of those documents. It appears that while the above points discussing the trial court has failed to take note of Section 59 of the Evidence Act. Even other wise the entire materials examined as a whole namely the complaint, Ext.P3 notice and also deposition of PW1, it can be seen that complainant has demanded the accused to pay the amount covered by the dishonoured cheque and thereby satisfied statutory requirement. But, the trial court has failed to examine the documents, in the light of the Section 59 of the Evidence Act and therefore wrongly held that the complainant failed to prove the demand as contemplated under Section 138 of the Negotiable Instruments Act. Therefore, it is just and proper to remand the matter for reconsideration of the court below regarding the question of service of notice on the accused. Crl. Appeal No. 304 of 2002 : 8 : In the result; in order to enable the court below to consider the matter, the impugned judgment is set aside, especially the finding of the court below under point No.3 while confirming the findings under points 1, 2 and 4. The complainant directed to appear before the court below on 12.3.2009, on which date the court below is directed to take up the complaint on file and after procuring the presence of accused, shall proceed with the complaint and take fresh decision under point No.3 in the light of the above discussions after hearing the parties. As the case pertained to the year 1998, the court below is directed to expedite the proceedings and dispose the matter within a period of 6 months from the date of receipt of copy of this judgment. V.K. MOHANAN, JUDGE kmd