IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1244 of 2004()
1. M/S.AMBIKA TEXTILES, A PROPRIETORSHIP
... Petitioner
Vs
1. MR.SALIM, PROPRIETOR, SINCERE TEXTILES,
... Respondent
2. STATE OF KERALA, REP: BY PUBLIC
For Petitioner :SRI.MATHEW SKARIA
For Respondent :SRI.SAIBY JOSE KIDANGOOR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :19/11/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 1244 of 2004
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Dated this the 19th day of November, 2010
JUDGMENT
This appeal is filed by the complainant in C.C. No. 103 of
2001 on the file of Judicial First Class Magistrate,
Kothamangalam against the judgment of acquittal dated
17.4.2004. The first respondent herein was the accused in that
case, which was filed by the complainant alleging commission of
an offence under Section 138 of the N.I. Act.
2. Briefly the allegations in the complaint are as follows.
The complainant is a proprietorship firm by name M/s. Ambika
Textiles, a whole sale dealer, in textiles and the accused
purchased goods on credit basis from the complainant and
towards the partial discharge of the debt due to the complainant
he issued a cheque bearing No.015107 dated 31.3.2000 for an
amount of Rs.31,000/- drawn on the Idukki District Co-operative
Crl.A. No. 1244 of 2004
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Bank Limited, Adimaly Branch. When the complainant presented the
said cheque for collection before the bank, it was dishonoured due to
insufficiency of funds in the account of the accused. Thereafter the
complainant issued a lawyer notice to the accused on 15.2.2000. The
notice was accepted by the accused, but he did not make the payment
of the cheque amount.
3. In the Magistrate Court, the Power of Attorney holder of the
complainant was examined as PW1 and Exts. P1 to P7 were marked on
the side of the complainant. No evidence was adduced from the side of
accused. The learned Magistrate, on considering the evidence, found
that the complainant has failed to establish that Ext.P2 cheque was
issued to the complainant firm, that the complainant firm is owned by
Harkawar Tawari, the executant of Ext.P1 Power of Attorney and the
accused was acquitted under Section 255(1) of Cr.P.C. Against that
judgment and acquittal the complainant filed this appeal.
4. Heard the learned counsel for the appellant and the learned
counsel for the first respondent.
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5. The learned counsel for the appellant submitted that the Court
below ought to have found that the appellant has proved its case
beyond reasonable doubt and ought to have convicted and punished the
accused under Section 138 of N.I. Act. The learned counsel for the
appellant further submitted that the court below ought to have found
that the decision reported in C.G. Dassan v. Ranimol S (2002(2) KLJ
111) is not applicable to the facts of the above case and in that case the
cheque was issued in favour of the proprietary concern and the
complaint was filed by the proprietor in his name instead of in the
name of the concern. Learned counsel for the appellant further
submitted that sufficient opportunity was not given to the appellant to
adduce evidence in the case and therefore the matter may be remanded
to the Court below for giving sufficient opportunity to the appellant to
adduce further evidence. The learned counsel for the first respondent
supported the judgment of the Court below.
6. In the decision reported in C.G.Dassan (supra), it was held
that in case of a complaint filed by the proprietary concern, the
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complaint has to establish that he is conducting the business in the
name referred in the complaint and the cheque was issued for that
concern.
7. PW1 is the Power of Attorney holder of the complainant
concern. PW1 deposed that his mother Harkawar Tawari is the
Proprietrix of the concern and she has executed Ext.P1 Power of
Attorney in favour of him. On going through the evidence adduced on
the side of the complainant, it is seen that there is no evidence to
establish that Harkiawar Tawari is the Proprietrix of the complainant
concern. PW1 admits that he has not seen execution of Ext.P2
cheque by the accused and that he has only hearsay knowledge from
one Pratap Singh regarding the execution of the cheque by the accused.
The specific case of the accused is that he had transaction with one
Sulaiman Sait and Ext.P2 cheque was issued to him in that transaction
and that cheque was manipulated by the complainant and filed this
case. The accused does not dispute his signature in Ext.P2 cheque.
Considering all these aspects of the matter, I am of the view that in the
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interests of justice further opportunity must be given to both sides to
establish their respective case and for that purpose the case has to be
remanded back to the trial court.
8. In the result, this appeal is allowed. The judgment of
acquittal of the accused in C.C. No. 103 of 2001 on the file of the
Judicial First Class Magistrate Court, Kothamangalam under
Section 255(1) Cr.P.C. is set aside and the case is remanded back
to that court for fresh disposal in accordance with law, after giving
sufficient opportunity to both sides to adduce further evidence.
Both parties are directed to appear before the court below on
5.1.2011. Send back the records to the court below immediately.
(M.L. JOSEPH FRANCIS)
Judge
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