IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 CRL.A.No. 905 of 2002() ----------------------- CC.1029/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... APPELLANT(S): COMPLAINANT ------------------------- K.C.THOMAS, S/O.CHACKO, PROPRIETOR, CHAVARA PIPE INDUSTRIES, MUPPATHADAM P.O., ALUVA. ERNAKULAM DIST. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE RESPONDENT(S): ACCUSED --------------- BABY, PROPRIETOR, NARMADA ENTERPRISES, KACHERIPARA, AZHIKODE, KANNUR - 9. ADV. SRI.T.B.SHAJIMON PUBLIC PROSECUTOR SRI PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/6/2009 ALONG WITH CRA NO. 971 OF 2002 & CRA NO. 944 OF 2002, THE COURT ON 02/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------ CRL. APPEAL 905, 944 and 971 OF 2002 ------------------------------------------------ Dated: JULY 2, 2009 JUDGMENT In all these appeals, the appellant and respondent are the same. All these appeals arise out of a common judgment of the Judicial First Class Magistrate – I, Aluva, dated March 20, 2002 in C.C.Nos.1029, 1042 and 1043 of 1998 finding the respondent/accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him. 2. The appellant filed three private complaints before the lower court alleging offences under sec.138 of the Negotiable Instruments Act against the respondent. The case of the appellant/complainant as testified by him as PW.1 before the trial court was that the respondent/accused purchased PVC pipes from the appellant and towards the amount due, the respondent issued six cheques, Exts.P1 to P3, P13, P14 and P22 for different amounts on different dates drawn on the Kannur District Co- operative Bank Ltd. When the appellant/complainant presented CRL. APPEAL 905, 944 and 971 OF 2002 2 the cheques for encashment, the same were returned dishonoured for want of sufficiency of funds in the account of the respondent in the bank. In spite of notices issued to him, the respondent did not repay the amount. 3. On receipt of the complaints, the lower court took cognizance of the case. The respondent on appearance before the lower court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. As the complainant and the accused are the same in these three cases, the lower court jointly tried the same. The complainant was examined as PW.1 and he produced Exts.P1 to P31 series before the trial court. When questioned by the lower court under sec.313 Cr.P.C., the respondent/accused denied the liability. On the side of the accused, Ext.D1 series were marked. 4. The main question which arises for consideration in these cases is whether the finding of the lower court that the respondent is not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him, can be sustained. CRL. APPEAL 905, 944 and 971 OF 2002 3 5. The lower court acquitted the accused mainly on the ground that the cheques were seen issued by the proprietor of Narmada Enterprises and that there is no evidence to show that the respondent/accused was the proprietor of the said firm and that Ext.P31 series copy of ledger folios of the relevant account of the bank show that the proprietor of the said firm is one P.K.Joseph and that his relationship with the accused is not proved. 6. It is true that the relevant account is maintained by Sri P.K.Joseph as seen from Ext.D1 series account opening form. The said account is jointly maintained by Sri P.K.Joseph and Sri P.K.Thomas, as seen from the ledger folio Ext.P31 series. But in the reply notice Ext.P21, it is seen that the accused has admitted the issuance of the said cheques. The lower court has failed to consider that aspect. Further, the learned counsel for the appellant submitted that he may be given an opportunity to prove the transaction between the respondent and the firm of the appellant as, admittedly, the respondent has business transactions with the appellant firm and in the reply notice CRL. APPEAL 905, 944 and 971 OF 2002 4 Ext.P21 the respondent has admitted that for the amount due to the complainant firm, he has issued some cheques. Under these circumstances I feel that the appellant firm should be given an opportunity to prove the transactions between the appellant firm and the respondent/accused. That being so, the matter has to be remanded to the lower court for fresh disposal. In the result, the finding of the trial court that the respondent is not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him is set aside. The matter is remanded to the lower court for fresh disposal according to law on the basis of the evidence already available and further evidence which the parties may adduce. The trial court shall dispose of the matter as early as possible, but not later than six months from the date of receipt of this judgment. The parties shall appear before the lower court on 15.7.2009. Send back the records to the lower court immediately. P.Q. BARKATH ALI, JUDGE mt/- CRL. APPEAL 905, 944 and 971 OF 2002 5 P.Q. BARKATH ALI, J. ------------------------------ CRL. APPEAL 905, 944 and 971 OF 2002 JUDGMENT ------------------------------ 2.7.2009