IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 CRL.A.No. 571 of 2002 ------------------------------- CC.326/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT: COMPLAINANT: ---------------------------------------- 1. KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD., K.V.TOWERS, MARAPPALAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR SRI.R.ASHOK, DO. DO. BY ADV. SRI.SABU S.KALLARAMOOLA RESPONDENT/ ACCUSED & STATE: -------------------------------------------------- 1. P.SREEKUMARI (TAX CONSULTANT) D/O. RAMACHANDRAN, VALIAVILA VEEDU, PULLUVILA P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. ADV. SRI.B.S.SWATHY KUMAR FOR R1 R2 - BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 571 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2008 JUDGMENT This appeal is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The court below, after considering the oral and documentary evidence on record held that the complainant had failed to substantiate the charge against the accused. Accordingly the accused was acquitted. The said order of acquittal is under challenge in this appeal. 2. The case of the complainant, the Kerala State Women's Development Corporation Ltd., was that respondent No.1/accused had availed of a loan of Rs.99,000/- from the Corporation for starting a photostat unit under the self employment Scheme, in July 1995. The accused committed default in repayment of the dues. Ultimately she issued Ext.P2 cheque dated March 4, 1998 for a total sum of Rs.1,28,000/- towards the outstanding loan amount, interest etc. The said cheque was dishonoured when it was presented for encashment. The statutory demand notice did not evoke any response; nor was the liability discharged. Hence the complaint. 3. Pw.1 was examined on the side of the prosecution and Exts.P1 to P5 were also marked . On the side of the defence Dw.1 was examined and Exts.D1 and D2 were marked. 4. The learned Magistrate while considering the question whether the complaint was maintainable, took the view that it was maintainable. However while considering the question whether the cheque had been issued in discharge of a legally enforceable debt or Crl.A.571/2002. 2 liability, it was held by the learned Magistrate that the averments either in the complaint or in the statutory demand notice did not satisfy the statutory requirement as provided under Section 138 of the Act. In other words, the learned Magistrate took the view that the pleadings or averments in the complaint ought to have been more specific, inasmuch as it ought to have been pleaded that the cheque in question was issued by the drawer “in discharge or towards repayment of a debt or liability”. 5. The learned Magistrate noticed that in the complaint there was no averment that the cheque had been issued “in discharge or repayment of any debt”. Similarly, in Ext.P4 statutory demand notice also, such an averment was conspicuously absent. The accused was acquitted by the learned Magistrate solely on that ground. While doing so, the learned Magistrate also took note of the plea of the accused that she had issued the cheque as security. 6. But it must be noticed at once that the accused did not adduce any evidence in this regard. She was not even examined. Significantly the accused had not disputed her signature in Ext.P2 cheque. The specific case of the complainant was that the accused had availed of a loan of Rs.99,000/- in the year 1995 and that she had committed default in repayment of the loan. Ultimately in 1998 she had issued Ext.P2 cheque which, when presented, was dishonoured due to insufficiency of funds in the account of the accused. 7. It is trite that the pleadings in a case have to be read as a whole. The attempt of the Court should never be to take a pedantic Crl.A.571/2002. 3 view in the matter of pleadings. If the complainant in a prosecution under Section 138 of the Act avers with regard to the essential ingredients of the offence and produces the dishonored cheque and other relevant documents indicating compliance of statutory mandates, the Court need not search for verbatim reproduction of the provisions in the relevant clause of the statute. Going by the materials available on record, there can be no doubt that the complainant had placed the essential pleadings and necessary materials before the court. From the pleadings in the complaint it is obvious that the accused knew what the case of the complainant was. In that respect the accused could not have pleaded any prejudice. Further, the accused did not have a case that she had not issued the cheque in question to the Corporation for a sum of Rs.1,28,000/- which represented the outstanding liability till that date. 8. Learned counsel for the accused, while taking me through the deposition of Pw.1, points out that Pw.1 in his chief examination had in fact stated that the accused had borrowed a sum of Rs.1,52,200/- in 1995. He points out that similar amount is mentioned in the complaint also. But obviously the above statement was made by Pw.1 in chief examination in tune with the averment made in paragraph 2 of the complaint. The said figure shown in the complaint was corrected and amended later as permitted by the court by its order dated January 10, 2001. 9. Pw.1 had admittedly assumed charge in the Corporation only in the year 1999. While giving evidence he might have referred to the original averment in the complaint without noticing the correction of Crl.A.571/2002. 4 the amount mentioned in the complaint. It is also contended by the learned counsel that the case of the accused was that she had issued 15 blank cheques. But the said suggestion was stoutly denied by Pw.1 in the course of cross examination. Significantly no contra evidence was adduced by the accused. 10. Having perused the averments in the complaint and the evidence of Pw.1, I do not find any reason to discard the prosecution case. In my view all the ingredients necessary to attract the offence under Section 138 had been pleaded and proved by Pw.1 in his evidence. In that view of the matter also, I have no hesitation to hold that the learned Magistrate committed a serious illegality and irregularity in holding that there was no proper pleadings or evidence in the case. Therefore, I am unable to sustain the order of acquittal passed by the learned Magistrate 11. Therefore the order of acquittal is set aside . But in the peculiar facts and circumstances of the case, the case is remitted to the court below for disposal in accordance with law. It is made clear that it will be open to both sides to adduce further evidence, if any, in the matter. Appeal is disposed of in the above terms. an. A.K. Basheer Judge.