IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 421 of 2001(A)
1. RETNAKAR, MANAGING PARTNER M/S.GEE & JAY
... Petitioner
Vs
1. SHYFUDEEN
... Respondent
For Petitioner :SRI.FEBIN J.VELUKARAN
For Respondent :SRI.BIMAL K.NATH
The Hon'ble MR. Justice V.K.MOHANAN
Dated :06/10/2008
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 421 of 2001
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Dated this the 6th day of October, 2008
J U D G M E N T
This appeal is filed by the complainant
challenging the order of acquittal passed by the court
below under Section 255(1) of the Code of Criminal
Procedure in C.C.No.803 of 1998 on the file of the Judicial
Fist Class Magistrate Court-III, Kottayam.
2. The case of the appellant/complainant is that
the first respondent/accused issued a cheque dated
9.10.1997 drawn on the State Bank of Travancore,
Anandavalleeswaram Branch, Kollam for an amount of
Rs.20,000/- towards the discharge of the debt due to the
complainant. According to the complainant, when the
cheque was presented for collection through the State
Bank of Travancore, Kanjikuzhy Branch, Kottayam, the
cheque was returned on 4.3.1998 with an endorsement
‘Refer to drawer’. As the cheque was dishonoured and
returned, the complainant caused to send a lawyer notice
to the accused intimating the receipt of dishonour memo
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from the bank and also demanding to pay back the
amount. According to the complainant, in spite of the
notice, no amount was paid and hence, a complaint was
filed alleging offence under Section 138 of the
Negotiable Instruments Act, 1881 (for short ‘N.I.Act’)
against the accused and the court took cognizance upon
the complaint and instituted C.C.No.803 of 1998. On
appearance of the accused, particulars were read over
to him who pleaded not guilty which resulted in further
trial during which PW1 was examined from the side of
the complainant and Exts,P1 to P9 were marked. On the
side of the accused, DW1 was examined and Exts.D1 and
D2 were marked. The trial court formulated two issues
for its consideration and finally came into a conclusion
that the accused was not guilty for the offence under
Section 138 of the N.I.Act and accordingly, he was
acquitted under Section 255(1) of the Cr.P.C. It is the
above order of acquittal, challenged in this appeal.
3. The complainant is represented by the Power
of Attorney Holder who is examined as PW1. Ext.P1 is
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the Power of Attorney. Ext.P2 is the cheque issued by
the accused. Ext.P3 is the dishonour memo received by
the complainant from the State Bank of Travancore,
Anandavalleeswaram Branch. Ext.P4 is the lawyer
notice issued to the accused and Ext.P5 is the postal
receipt. Ext.P6 is the acknowledgement card. The
relevant page of the cheque book register of S.B.T.,
Anandavalleeswaram Branch is produced and marked as
Ext.P7 and Ext.P8 is the cheque returned register. The
accused admitted the execution of the cheque by
admitting his signature on Ext.P2 cheque. The case put
forward by the accused is to the effect that during the
transaction between the accused and the complainant,
the payment is being made only through cash or draft
and the same is not effected through cheque. Ext.P2
cheque is given only as a security. Though the accused
stated that the cheque was issued as a security,
according to the court below, he did not produce any
evidence to substantiate the same and the court had
further held that the presumption under Sections 118(a)
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and 139 of the N.I.Act is in favour of the complainant
and the accused has not rebutted the same and
accordingly, the court below found that Ext.P2 cheque
was issued by the accused for consideration and in
discharge of the liability. Since the accused has not filed
any appeal against the above finding of the court below,
I need not go into the merits of the conclusions arrived
by the court below on the above point.
4. The court below was of the opinion that the
complainant had not produced any evidence to establish
the ingredients and liability under Section 138 of the
N.I.Act. The case of the complainant is that Ext.P2
cheque was returned as there was no sufficient fund in
the account of the accused to honour Ext.P2 cheque. It
is beyond dispute that Ext.P2 cheque was dishonoured
due to the reason ‘Refer to drawer’ as evidenced by
Ext.P3 memo. The court below had already found that
the complainant has neither examined the Bank
Manager nor produced the certified copy of the ledger
to prove that there was no sufficient fund in the account
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of the accused to honour Ex.P2 cheque. After stating
the essential ingredients of Section 138 of the N.I.Act,
the court concluded that in the present case, there is no
material or evidence to show that Ext.P2 cheque was
returned for insufficiency of fund in the account of the
accused. In order to attract the penal liability, the
complainant has to establish that the cheque in question
is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account
is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account by an
agreement made with that bank. In the present case,
the case of the complainant is that the cheque in
question was dishonoured for the reason that there was
no sufficient fund in the account of the accused to
honour the cheque. On examination of the materials and
evidence on record, it could be seen that the
complainant has miserably failed to establish the above
ingredients of Section 138 of the N.I.Act and therefore,
the trial court correctly concluded that there was no
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evidence to attract Section 138 of the N.I.Act as the
complainant had not proved the insufficiency of fund in
the account of the accused to honour the cheque.
Though PW1 was examined and certain documents were
produced, none of those evidences are sufficient to hold
that Ext.P2 cheque was dishonoured for want of
sufficient fund in the account of the accused. It is
pertinent to note that from the evidence adduced by the
complainant, especially in the light of Exts.P2 and P3, it
can be seen that the reason for dishonour of cheque is
other than what stated in Section 138 of the N.I.Act.
Therefore, the complainant has miserably failed to
discharge the duty in making out a case against the
accused in terms of Section 138 of the N.I.Act. Thus,
nothing is brought out to the notice of this Court to take
a different view based upon the available materials and
therefore, this Court cannot interfere with the order of
acquittal passed by the court below.
5. In the light of the above facts and
circumstances and the discussion, no ground is made
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out to interfere with the order of acquittal passed by the
court below and the appeal is devoid of merit.
Accordingly, this Criminal Appeal is dismissed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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Crl.A.NO. 421 OF 2001
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J U D G M E N T
DATED:6-10-2008
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