IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 66 of 2000()
1. M/S.NATIONAL CEMENT CORPN.
... Petitioner
Vs
1. SREEVALSAN
... Respondent
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.SAJAN VARGHEESE K.
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :27/03/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.A.No.66 of 2000
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Dated this the 27th day of March, 2007
JUDGMENT
The appellant is the complainant who had initiated
proceedings under Section 138 of the Negotiable Instruments
Act which ended in the acquittal of the accused.
2. It is the case of the appellant/complainant that the
impugned cheque was issued towards discharge of liability for
supply of cement. The amount due as per the cheque is
Rs.66,800/-. The cheque when presented got dishonoured for
want of funds in the account of the accused. The lawyer notice
sent demanding payment was not replied to. The proceedings
were initiated in time as per the statutory stipulations.
3. The evidence adduced in the matter consisted the
testimony of PWs’ 1 to 3 and Exts. P1 to P12. PWs’ 2 and 3 are
the bank managers who has produced the relevant records to
establish the fact that the cheque was dishonoured for want of
funds in the account of the accused.
4. The court below dismissed the complaint on the
following grounds:
Crl.A.No.66/2000 Page numbers
(i) In the lawyer notice the cheque number mentioned
contained a mistake i.e., one digit was omitted.
(ii) Ext.P6 lawyer notice is not related to Ext. P3 cheque
i.e, the impugned cheque. PW1, in cross examination
on behalf of the complainant has admitted that two
other post dated cheques issued by the accused that
were got dishonoured were returned to the accused.
He also stated subsequently that he does not know
what happened to those cheques. He has also stated
that there is no records with respect to the cheques
returned to the accused.
(iii) There is no reasons as to why no prosecution was
launched with respect to the above two cheques which
were dishonoured.
5. I find that the court below has not considered the
issues involved in the proper perspective and has dismissed the
complaint. On certain matters which are totally inconsequential
so far as the disputed issues are concerned. The fact of
execution of the cheque has been testified to by PW1, the sales
assistant who was examined at the instance of the complainant.
Crl.A.No.66/2000 Page numbers
The suggestion in the cross examination to PW1 as well as in
Section 313 of Crl.P.C. questioning is that the cheque issued as
security was misused by entering a sum which was not due.
According to the complainant, the cheque amount represented
the amount due as per Ext. P2 series of invoices. It is also
pertinent to note that the accused has not sent a reply to the
lawyer notice demanding payment. His version is that he
personally met the complainant and that the complainant
assured him that no steps would be taken against the accused.
The rest of the contention of the accused is based on certain
irrelevant contradictions that has been brought out in the cross
examination of PW2. It is also pertinent to note that the accused
would be having documents to establish the supply received and
the amounts paid, but no attempt has been made to adduce any
evidence at his instance. The complainant has produced the
entire documents available. The court below has not considered
any of the above documents. On consideration of the evidence
adduced in the matter, I find that the complainant has
established the execution of the cheque and hence the statutory
presumption operate. The accused has failed to rebut the same.
Crl.A.No.66/2000 Page numbers
I find that the evidence adduced in the matter do establish
beyond reasonable doubt that the accused is guilty for the
offence alleged. Hence the findings of the court below are set
aside. The accused is acquitted under Section 138 of the
Negotiable Instruments Act and sentenced to imprisonment till
the rising of the court and to pay a compensation of Rs.66,800/-
vide Section 357(3) of the Code of Criminal Procedure and in
default, to undergo simple imprisonment for three months.
Appellant is granted three months’ time to pay the amount of
compensation. He shall appear before the Judicial First Class
Magistrate Court II, Palakkad on 28.6.2007 to receive the
sentence.
The criminal appeal is disposed of as above.
K.R.UDAYABHANU,
JUDGE
csl