IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 CRL.A.No. 1676 of 2007() ------------------------ CC.262/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANT-COMPLAINANT: -------------------------- SIVADASAN, VYSAKHA BHAVAN, THENGAMUM MURI, PALLICKAL VILLAGE. BY ADV. MR. N.DHARMADAN, SENIOR ADVOCATE MS. D.P.RENU RESPONDENT-ACCUSED:- ------------------------------ PARAMESWARAN PILLAI, PUTHENPURAYIL VEEDU, THOTTUVA, THENGAMUM MURI, PALLICKAL VILLAGE. ADV. MR. V.PHILIP MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- Crl.A. No. 1676 of 2007 ------------------------------------------------------------ Dated this the 15th day of September, 2009. JUDGMENT The complainant in C.C. No. 262 of 2004 on the file of the Judicial First Class Magistrate, Adoor is the appellant in this appeal. It was a prosecution for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. He challenges the order of acquittal passed by the learned Magistrate acquitting the accused giving him the benefit of mistake in the name. According to the accused examined as DW1, his name is Vameswaran Pillai as against Parameswaran Pillai which was the name shown both in the statutory notice as well as in the complaint. The learned Magistrate accepted the said version and accordingly passed the impugned judgment dated 02.04.2007 acquitting the accused of the offence punishable under Section 138 of the Negotiable Instruments Act. The cheque in question was for a sum of Rs.1,30,000/-. At one stage of his Crl. Appeal No. 1676 of 2007 : 2 : deposition, PW1, the complainant deposed that he did not know the correct name of the accused while filing the complaint. Except the testimony of the accused examined as DW1, no documentary evidence was before the court to show that the name of the accused is Vameswaran Pillai and not Parameswaran Pillai. The complainant could have got the bank records summoned or examined the bank Manager to ascertain the correct name of the account holder. There is no dispute that Ext.P1 cheque leaf belongs to DW1 who holds the account in question with the drawee bank. The question whether the account holder is Vameswaran Pillai or Parameswaran Pillai, cannot be decided merely on oath against oath. Under these circumstances, the order of acquittal merely for the reason that the correct name of the accused is Parameswaran Pillai and that too based on the oral testimony of PW1 alone, cannot be sustained. The judgment of acquittal is, accordingly, set aside and the matter is remitted to the court below to enable to the Crl. Appeal No. 1676 of 2007 : 3 : complainant to adduce further evidence including the summoning of records of the drawee bank and the examination of the bank Manager to prove the correct name of the account holder. If it turns out that the correct name of the accused is Vameswaran Pillai and not Parameswaran Pillai, then also the learned Magistrate shall consider whether the statutory notice as well as the complaint are bad in the light of the decision in Ninan v. Rufus Olivero – 1994 (1) KLT 984 and related rulings particularly when DW1 who claims to be Vameswaran Pillai, admittedly received the statutory notice as well as summons both of which were issued to Parameswaran Pillai and not to Vameswaran Pillai. The court below shall consider whether there has been any mistake in the identity and if so whether the accused has suffered any prejudice on account of that. In the result, this appeal is allowed and the matter is remanded to the court below for disposal afresh after giving both sides an opportunity to adduce further evidence, if any. Crl. Appeal No. 1676 of 2007 : 4 : The parties shall appear before the trial court on 05.10.2009 without any further notice. Re-transmit the lower court records to the court below forthwith. Dated this the 15th day of September, 2009. V. RAMKUMAR, JUDGE. rv