IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 167 of 1999()
1. P.N.BHASKARAN NAIR
... Petitioner
Vs
1. K.KRISHNANKUTTY
... Respondent
For Petitioner :SRI.T.S.RADHAKRISHNA PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
Dated :14/02/2007
O R D E R
J.B.KOSHY, J.
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Crl. Appeal No.167 of 1999
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Dated this the 14th day of February, 2007
Judgment
This appeal is filed against the order of
acquittal. Notice was ordered on 8.3.1999, but, no
effective steps were taken to serve notice on the accused.
On 18.10.2006, this court granted a week’s time to cure the
defect and for taking fresh steps as last chance. So far,
no steps were taken. Without service of notice and hearing
the accused, an order of acquittal cannot be reversed.
Therefore, non-taking of effective steps for serving notice
on the accused is itself a ground for dismissing the
appeal. However, since this is a criminal appeal, I have
also gone through the merits of the case. Case of the
complainant was that accused has issued cheque for
Rs.1,25,000/- to him to discharge an existing liability and
the cheque was presented before the bank for collection,
but, it was dishonoured for insufficiency of funds.
Therefore, he approached the Magistrate’s court after
completing the statutory formalities. Accused denied the
transaction. The complainant who was examined as PW3 was
not able to prove before the court when and how the
liability occurred. According to him, he paid the amount
to the accused by withdrawing the said amount from the
District Co-operative Bank Limited, Kumaramangalam Branch.
PW1 on behalf of the District Co-operative Bank Limited
gave evidence that there is no branch at Kumaramangalam.
DW1 is one of the directors of the District Co-operative
Bank Limited. Ext.D1 is the list of branches of the
District Co-operative Bank Limited. Therefore, trial court
found that the version of the complainant that he took
Rs.1,25,000/- from the Kumaramangalam branch of the
District Co-operative Bank Limited and gave the same to the
accused is unbelievable. According to the accused, no
amount was due by him to the complainant. According to
him, Ext.P1 blank cheque was issued to the complainant on
the understanding that the complainant will take necessary
steps for the reinstatement of the accused who was under
suspension at that time. It is admitted by the complainant
also that accused was under suspension during the relevant
period. The trial court found from the evidence available
that it is possible and, in any event, it is not proved
that Ext.P1 cheque was issued for a legally enforceable
liability and the case of the accused is more probable and
presumption under section 139 is rebutted.
In this connection, I also refer to the decision
of the Apex Court in M.S.Narayanan Menon @ Mani v. State of
Kerala (2006 (3) KLT 404). On going through the evidence
as well as the findings, it cannot be stated that the view
Crl.A.No.167/99 3
of the trial court is not a possible one. I agree with the
findings of the trial court. Therefore, there is no merit
in the appeal and the appeal is dismissed.
J.B. KOSHY
(JUDGE)
vaa
J.B.Koshy, J.
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Crl.A. No. 167 of 1999
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Judgment
14-2-2007