IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 905 of 2002()
1. K.C.THOMAS, S/O.CHACKO, PROPRIETOR,
... Petitioner
Vs
1. BABY, PROPRIETOR, NARMADA ENTERPRISES,
... Respondent
For Petitioner :SRI.ANTONY DOMINIC
For Respondent :SRI.T.B.SHAJIMON
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :02/07/2009
O R D E R
P.Q. BARKATH ALI, J.
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CRL. APPEAL 905, 944 and 971 OF 2002
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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
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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
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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
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P.Q. BARKATH ALI, J.
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CRL. APPEAL 905, 944
and 971 OF 2002JUDGMENT
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2.7.2009