IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 691 of 2001()
1. M/S.SEMIC ENGINEERS AND CONTRACTORS
... Petitioner
Vs
1. SUHARA HYDER
... Respondent
For Petitioner :SRI.JAIJI ITTEN
For Respondent :SRI.BABU KARUKAPADATH
The Hon'ble MR. Justice V.GIRI
Dated :29/08/2008
O R D E R
V. GIRI, J.
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CRA.NO. 691 of 2001
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Dated this the 29th day of August, 2008
JUDGMENT
The complainant in CC.No.1200/95 on the files of the JFCM
Court-II Ernakulam is the appellant herein. The calendar case
arose out of a complaint filed by the appellant herein alleging
that the accused has committed an offence under section 138 of
the Negotiable Instruments Act. At the conclusion of the
evidence the accused was questioned under section 313 of the
Cr.P.C. The court below went on to find that the complainant
had no ample evidence to prove the guilt of the accused beyond
reasonable doubt and accordingly acquitted the accused under
section 255(1) of the Cr.P.C. The same has been challenged in
this appeal.
2. The case of the complainant was that the accused had
issued Ext.P1 cheque drawn on the Kaippamangalam branch of
the Canara Bank on 15.11.1994 in favour of the complainant
towards the consideration for the construction work of the
accused. Later the cheque on presentation was dishonoured for
CRA.691 /2001 2
want of sufficient funds. Though notice was issued, payment was
not made and thereafter the complaint was lodged. The power of
attorney holder of the complainant was examined as PW1.
Exts.D1 to D14 were marked through PW1 himself as defence
evidence. The stand taken by the accused was that Ext.D1
agreement was executed between the complainant company and
the accused for the construction of a two storied residential
building for the benefit of the accused. The agreement
contemplated staggered payment of a total amount of
Rs.4,20,000/-. The payment was to be made at different stages
of the construction. It so happened the construction was not
carried ourt in accordance with the plan supplied. In fact there
was diminution in the total plinth area contemplated in the plan.
Ext.D3 to D14 receipts will show that an amount of
Rs.1,85,000/- was paid by the accused to the complainant
company. Specific suggestion in this regard made in the cross
examination of PW1 elicited the above mentioned facts. The
specific case of the accused was that Ext.P1 cheque was issued
only as a security and therefore it was not supported by
consideration.
CRA.691 /2001 3
3. Having gone through the evidence in the case, one
aspect which is to be noted straight away is that the complaint
and Ext.P3 notice are silent regarding the construction agreement
and payment of amounts by the accused to the construction
company in instalments. Apparently the complainant only put
forward a case that a cheque was issued towards cost of the
construction work of the accused and that the cheque was later
dishonoured for want of sufficient fund. Sufficient evidence has
been adduced by the accused to rebut the statutory presumption
under section 139 of the Negotiable Instruments Act and it
cannot be said that the court below committed an error in holding
that Ext.P1 cheque was not supported by consideration.
For all these reasons, I do not find any ground to interfere
with the order of acquittal passed by the court below. The appeal
is bereft of merit. It is accordingly dismissed.
V. GIRI, JUDGE.
pmn/ CRA.691 /2001 4