IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 CRL.A.No. 1683 of 2010() ------------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.834/2010 Dated 04/08/2010 CC.32/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR ......................................... APPELLANT(S): PETITIONER/COMPLAINANT ----------------------------------------------------------------------- SUJAN K.V., S/O.VASUDEVAN VAIDYAR, KUNNIKULATH HOUSE, PROPRIETOR, LEAF N RELIEF, PERINJANAM P.O. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): ACCUSED AND STATE ------------------------------------------------------------- 1. SAJEEV, S/O.KARTHIKEYAN, CHATHANATH HOUSE, PROPRIETOR, SRELAKSHMI ENTERPRISES, 624/7A, MARATHAMKODE, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1683 OF 2010 ----------------------------------- Dated this the 15th day of September, 2010 J U D G M E N T This is an appeal filed against the order of acquittal. 2. The complainant is the appellant. He filed a complaint against first respondent alleging offence u/s.138 of Negotiable Instruments Act. As per the allegations in the complaint, accused owed Rs.15,000/- to complainant towards medicine purchased by him. In order to discharge the liability, he issued cheque dated 10.5.2008 and on presentation of the cheque, it was dishonoured. Lawyer notice was issued demanding payment. Accused sent a reply stating false contentions and failed to pay the amount and hence the complaint. 3. The complainant adduced evidence. PW1 was examined. Ext.P1 to P5 were marked. Accused produced Ext.D1 to D3. On an analysation of the evidence in detail the court found that accused is not guilty of the alleged offence. It is also held that Ext.D1 and D2 probabalise the defence of accused and raises suspicion on the execution and issuance of Ext.P1 cheque. The following findings are entered into by the trial court: Crl.A. No.1683/10 2 “According to the accused, he had worked as Manager and distributor of the complainant firm for about eight years and this fact was admitted by PW1. At the time of taking the distributorship by the accused he had entrusted some cheques with the complainant and one among them was misused by the complainant. From 1.4.2008 onwards complainant had terminated the distributorship of the accused and the products were returned by the accused as it was not in a position to sell the same. But the cheques were not returned to him by the complainant. He further admits that from 1.4.2008 onwards no products were given by him to the accused. PW1 has identified Ext.D1 notice sent by the accused and also Ext.D2 reply sent by him to the said notice. It is to be noted that even though the number of Ext.P1 cheque is mentioned in Ext.D1 notice, PW1 has not given a clear explanation about the same in Ext.D2 reply notice. On the other hand he had given a vague reply without toughing whether such blank cheques are with him. According to PW1 a total amount of Rs.2,43,000 is there to be realised from the accused. He had deposed that he used to file income tax return and the amount that has to be realised from the accused would be shown in the income tax return. Even then no such documents were produced by him to prove this aspect. Moreover, PW1 had admitted that after 1.4.2008 there was no business transaction between accused and himself and no products were given to the accused. Whatever may be the reason, Ext.P1 cheque produced in this case would have definitely given to him by the accused prior to 1.4.2008. But no mentioning in the complaint or chief affidavit about the date on which Ext.P1 cheque was issued by the accused to PW1. Ext.P1 is dated 10.5.2008. Why PW1 has not whisper anything about the date on which Crl.A. No.1683/10 3 the said cheque was given by the accused would definitely create doubt in the execution and issuance of cheque and will probabalise the case of the accused. Dishonour memo would show that it is dishonoured on 23.10.2008.” 3. Learned counsel for petitioner was not able to substantiate that the above findings are wrong or erroneous. According to appellant, court below did not consider the ledger account maintained in the name of the accused and the finding that there is no legally enforceable debt is unsustainable. 4. On going through the order of acquittal, I find that the trial court specifically entered a finding that as per the admission of the complainant, the liability towards the accused would find a place in the income tax return filed by the complainant, but such records are not produced. The court also take note of the fact that all the relevant facts and passed the order of acquittal. I do not find any reason to interfere with the findings or to admit this appeal. The appellants counsel could not substantiate that the impugned order is unsustainable. This appeal is dismissed. K. HEMA, JUDGE. Sou.