High Court Kerala High Court

M/S.National Cement Corpn vs Sreevalsan on 27 March, 2007

Kerala High Court
M/S.National Cement Corpn vs Sreevalsan on 27 March, 2007
       

  

  

 
 
  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

                        ---------------------------------------------

                   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