High Court Kerala High Court

E.K.George vs Sri.K.N.Baby on 24 August, 2009

Kerala High Court
E.K.George vs Sri.K.N.Baby on 24 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 299 of 2003()


1. E.K.GEORGE, S/O. KURIYPEE, RESIDING AT
                      ...  Petitioner

                        Vs



1. SRI.K.N.BABY, AGED 41 YEARS,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.P.B.ASOKAN

                For Respondent  :SRI.S.U.NAZAR

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :24/08/2009

 O R D E R
                     M.N. KRISHNAN, J.
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               Crl. Appeal NO. 299     OF 2003
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         Dated this the 24th day of August, 2009.

                      J U D G M E N T

This appeal is preferred against the order of acquittal

passed by the Judicial First Class Magistrate-V,

Thiruvananthapuram in S.T.34/01. It is the case of the

complainant that the accused had borrowed a sum of

Rs.1,15,000/- and towards the discharge of the liability had

issued a cheque which when presented for encashment

returned with the endorsement of funds insufficient.

Thereafter a statutory notice was issued which returned

unclaimed and thereafter prosecution has been launched. It

appears to be the defence that while the wife of the accused

was undergoing treatment in a hospital for cancer the accused

had borrowed a sum of Rs.15,000/- from the complainant who

is a money lender and at that time had issued a promissory

note as well as a cheque for Rs.15,000/- written only in

figures and not in words. The said cheque had been misused

Crl.A. No. 229 OF 2003
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and the case has been filed. PW1 is the complainant. He had

deposed about the transaction as alleged in the complaint. He

had deposed that the accused had brought the cheque written

and signed it before him and he had also requested the

complainant not to present the cheque for two months and

that was the delay in presenting the cheque for encashment.

The suggestion is that a cheque written in figure of

Rs.15,000/- has been corrected as Rs.1,15,000/-. The learned

Magistrate also found it to be possible and probable that the

figures Rs.15,000/- had been corrected as Rs.1,15,000/-. I

had meticulously perused the cheque. Every person has got a

different style of writing. It can be seen that the entire writing

is made by the same person. The only suspicious character

thereunder is that there is a full stop after the printed word

‘Rupees’. The ‘1’ in Rs.1,15,000/- has gone to the left side on

that point and therefore the learned Magistrate jumps to the

conclusion that there is material alteration. I am afraid that it

should not have reached such a conclusion with the naked eye

comparison. Therefore that finding has to be vacated.

Crl.A. No. 229 OF 2003
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2. Similarly there is a definite case that the accused in

313 questioning stated that he has issued a notice to the Bank

to stop the payment on 12.12.1997 alleging that the cheque

leaves had been lost. The present cheque is dated only

30.12.97. If he had already issued a registered letter on

12.12.97 certainly one can visualize the correctness or the

truthfulness of the whole story. For this purpose an application

was filed by the complainant after the 313 questioning to

recall the Manager and adduce evidence. Unfortunately the

Court below rejected that request. It was improper. It should

have gone a long way to find out the truthfulness of the case.

Therefore I feel opportunities can be given to both the sides to

adduce further evidence in support of their respective

contentions in order to enable the Court to arrive at a right

decision. Therefore the order of acquittal passed is set aside

and the matter is remitted back to the trial court with a

direction to permit both the parties to adduce additional

evidence and produce documentary evidence in support of

their respective contentions and then dispose of the matter

Crl.A. No. 229 OF 2003
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afresh in accordance with law. Parties are directed to appear

the Court below on 8.10.2009.

M.N. KRISHNAN, JUDGE.

ul/-

Crl.A. No. 229 OF 2003
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M.N. KRISHNAN, J.

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Crl.A. No. 229 OF 2003
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J U D G M E N T

24th August, 2009