IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRL.A.No. 798 of 2002() ----------------------- CC.321/1999 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ M/S. KISSAN FERTILISERS, SILK STREET, CALICUT, REP. BY ITS POWER OF ATTORNEY HOLDER, K. NARENDRAN, ARCHANA, ERNALIPALAM TOWERS, POLICE STATION LIMIT. BY ADVS. MR.T.B.SHAJIMON, SMT.GOVIND P.RENUKADEVI. RESPONDENT(S): ACCUSED & STATE: --------------------------------------------------------- 1. K. SASIDHARAN S/O. CHANDU, KUNIYIL HOUSE, KAPPADE, CHEMANCHERRY P.O., KOYILANDY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.A. No.798 OF 2002 ===================== Dated this the 25th day of May 2009 JUDGMENT This appeal is preferred against the order of acquittal in C.C.No.321 of 1999 of the Judicial I Class Magistrate Court-I, Kozhikode. The case of the complainant is that the accused had purchased fertilizers and pesticides from the complainant on credit basis and there was an amount of Rs.46,425/- outstanding as due from the accused and towards the discharge of the said liability the accused had issued a cheque dated 28.7.1998. When the cheque was presented for encashment, it was returned with the endorsement 'insufficiency of funds'. Thereafter prosecution has been initiated. On the contra the accused would contend that the claim is barred by limitation and therefore there cannot be any cause of action for recovery of a barred debt and so an action under Section 138 will not lie. Though the respondent-accused is served, he has not chosen to appear before this Court. 2. Heard the learned counsel for the appellant and perused the documents. The trial court in paragraph 7 of the judgment had referred to CRL.A.798/2002 -:2:- the evidence of PW1 in the case. The complainant is attempting to save the limitation on the basis of the issuance of cheques and documents in the form of Exts.P9 to P13. When PW1 was examined, it was admitted that they are keeping accounts and it is also admitted by PW1 that they will keep an account for receiving the cheque. The court opines that if that account is verified, it can be seen that in which account the cheques were issued. I feel if really cheques had been issued towards the transaction alleged it may amount to acknowledgment of liability which will work out in favour of the complainant. I feel an opportunity can be given to the complainant to produce those documents and adduce further evidence to substantiate that contention. Therefore the judgment under challenge is set aside and the matter is remitted back to the trial court for fresh consideration by permitting the complainant to produce additional documents to prove that Exts.P9 to P13 relate to the transaction by producing documentary as well as oral evidence. Needless to say that if the accused chooses he can also furnish materials to disprove the same. Since the accused has not appeared before this court, on appearance, the complainant is directed to take out summons to the accused so that he can also participate in the proceedings. The appellant is directed CRL.A.798/2002 -:3:- to appear before the trial court on 2.7.2009. Crl.A. is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-