IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 191 of 2003 ----------------------- CC.172/1999 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... APPELLANT: COMPLAINANT ------------------------- M/S. VERTEX SECURITIES LTD., THOTTATHIL TOWERS, 2ND FLOOR, MARKET ROAD, ERNAKULAM, REPRESENTED BY ITS SENIOR EXECUTIVE SRI.K.J.THOMAS BY ADV. SRI.TOMY SEBASTIAN RESPONDENTS: ACCUSED ---------------------- 1. SRI. SUDEV P., M/S. MALABAR CONSULTANTS, REGENCY BUILDING, CALICUT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 BY PUBLIC PROSECUTOR MR. P. RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C. HARI RANI,J ============================== CRL.A. NO. 191 OF 2003 ============================ DATED THIS THE 8TH DAY OF JULY 2009 JUDGMENT The appellant is the complainant in C.C.No.172 of 1999 on the file of the Judicial First Class Magistrate Court-III, Kozhikode which was filed under Section 138 of the Negotiable Instruments Act. As per judgment dated 30-11-2002, the accused was acquitted under Section 255(1) of the Code of Criminal Procedure which is challenged by the appellant/complainant in this appeal. 2. The case of the complainant is that Ext.P2 cheque dated 30-6-1996 for Rs.15,000/- was issued by the accused to the complainant towards part payment of huge amount due from him to the complainant. When that cheque was presented for collection, it was dishonoured by the Bank due to insufficiency of funds in the account of the accused. Accordingly, lawyer notice dated 23-12-1996 was issued to the accused which was accepted CRL.A.191/2003 -2- and a reply notice was sent by the accused dated 9-1-1997. Since the accused failed to pay the amount covered under Ext.P2 cheque, the complaint was preferred by the complainant before the learned Magistrate. 3. On the side of the complainant/appellant, PW1 was examined and Exts.P1 to P5 were marked. The accused was examined as DW1 and no documentary evidence has been adduced on his side. After considering the evidence on record, the learned Magistrate acquitted the accused which is challenged in this appeal. 4. Heard the learned counsel appearing for the complainant/ appellant. No representation for the first respondent/ accused. 5. The learned counsel for the appellant has submitted that the order of acquittal of the accused is illegal and unsustainable. According to the learned counsel, presumption under Sections 118 and 139 of the Negotiable Instruments Act is in favour of the complainant for the reason that the accused has admitted the execution of Ext.P2 cheque which was not considered by the learned Magistrate. The complainant is a Public Limited Company, which is doing business of purchase and sale of shares, CRL.A.191/2003 -3- and was being represented by its then Manager who filed the complaint before the lower court and when that Manager left the company, he was substituted by the Present Manager who was examined before the trial court as PW1 as revealed from Ext.P1 resolution. The learned counsel has then prayed for a chance to produce the documents to prove the transactions in between the accused and the complainant as deposed by PW1. 6. To prove the case of the complainant, PW1 was examined as the authorised officer of the company as revealed from Ext.P1. It is specifically admitted by him in so many words that there are documents in the company to prove the dealings between the complainant and the accused. The accused has also purchased and sold the shares of various companies through the complainant for customers. The accused has denied the case of the complainant and according to him, he had no transaction with the complainant. According to the accused, he is a consultant and he used to give advise to the customers and sent them to the complainant company for which he handed over three signed blank cheques to the company. In the cross examination, PW1 had specifically admitted that there were business dealings CRL.A.191/2003 -4- between the complainant and the accused which would reveal from the documents kept in the custody of the company and those documents can be produced. PW1 was examined before the trial court on 9-4-2002 and the accused was examined only on 11-11-2002. In between that seven months period, those documents admittedly in the possession of the complainant company have not been produced for the reason best known to the complainant and PW1 who was examined on behalf of the Company. So, the prayer for a remand after a period of 13 years cannot be accepted. 7. Execution of Ext.P2 cheque as such has not been admitted by the accused as argued by the learned counsel appearing for the appellant, instead the case of the accused during cross examination of PW1 as also when examined as DW1 which has been reiterated in the 313 Cr.P.C. questioning is to the effect that he was working as the share consultant and he used to send customers to the complainant company and three blank cheques were handed over by him to the complainant company as security which was not returned to him due to some difference of opinion between him and the then Manager of the Company, CRL.A.191/2003 -5- Majo K.Antony. The entire dealings as averred in the complaint and also spoken to by PW1,the witness examined on the side of the complainant have been denied by the accused when examined as DW1. According to him, he has handed over signed blank cheques which was manipulated by the company by adding the date, amount etc. and there was no business transaction between them. Thus the burden is on the complainant to prove the execution of Ext.P2 cheque by the accused. Then only the presumption under Sections 118 and 139 of the Negotiable Instruments Act will be available in favour of the complainant. Regarding the execution of Ext.P2 cheque, it is deposed by PW1 that he has no direct knowledge regarding the same. He has no information whatsoever under what circumstance Ext.P2 cheque has been handed over to the company. Considering the evidence both orally and documentary, it was found by the learned Magistrate that the execution of Ext.P2 cheque has not been proved and that complainant has failed to prove that the accused has committed the offence under Section 138 of the Negotiable Instruments Act. It is also deposed by PW1 that civil case was filed against the accused which was already dismissed. CRL.A.191/2003 -6- Accordingly, the learned Magistrate acquitted the accused. I find no ground to set aside the findings entered into by the learned Magistrate and the same is confirmed. In the result, this appeal is dismissed. M.C. HARI RANI,JUDGE ks.