IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 566 of 1998(M)
1. P.A.ANTONY
... Petitioner
Vs
1. JOY SKHARIAH
... Respondent
For Petitioner :SRI.K.GOPALAKRISHNA KURUP
For Respondent :SRI.TOMY SEBASTIAN
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :13/08/2007
O R D E R
K.R. UDAYABHANU, J.
CRL.A.NO. 566 OF 1998
DATED THIS THE 13TH AUGUST 2007
JUDGMENT
The appellant is the complainant who had initiated
proceedings under Section 138 of the Negotiable Instruments
Act which stands dismissed and the accused acquitted. The
prosecution case is that the accused borrowed a sum of
Rs.31,000/- and towards discharge of the same issued
impugned cheque dated 15-2-1995 which when presented got
dishonoured for want of funds in the account of the accused.
Lawyer notice sent was received but no reply was sent nor was
any amount paid.
2. The evidence adduced in the matter consisted of the
testimony of Pws.1 and 2 Exts.P1 to and Exts..P1 to P7. Defence
got examined DW.1 and Exts. D1 to D3 . It is the defence case
that he had borrowed only a sum of Rs.10,000/- but towards the
same he issued a blank cheque which has been converted into
Ext.P1 cheque. The accused has also produced Ext.D3 photocopy
of the cheque allegedly issued by the complainant dated 14-12-
1993 for a sum of Rs.10,000/-. According to the accused,
CRL.A.NO. 566/1998
-2-
Ext.P2 is the cheque book of which the first cheque is the
impugned cheque. According to him, he has remitted the above
amount borrowed at the rate of Rs.500/- per month upto
14.9.1994. The impugned cheque has been filled up by the
complainant as he did not oblige to his demand for an additional
amount of Rs.13,250/- towards interest. The trial court has noted
that Ext.D1 would reveal that the account itself was opened on
13-12-1993 as on the date of Ext.P3 cheque. I find that the
above observation is incorrect as Ext.D1 would not show that the
account was opened on 31-12-1993. Ext.D3 is dated 14-12-1993
and not dated 13-12-1993 as noted by the court below. Further
as pointed out by the counsel for the respondent/accused, Ext.P7
copy of the account extract of the accused would not show that
on the date of presentation of the cheque, there was no
sufficient funds in the account of the accused. Ext.P7 copy of the
extract of the account of the accused is only for the period upto
16-2-1994. In the circumstances, I find that the matter requires
CRL.A.NO. 566/1998
-3-
reconsideration. The decision of the court below is set aside. The
court below will decide the matter afresh after affording
opportunity to the parties to adduce further evidence if they so
desire. The case would stand posted before the court below on
17-9-2007.
K.R.UDAYABHANU, JUDGE
ks.
CRL.A.NO. 566/1998
-4-
K.R.UDAYABHANU, J
CRL.A.566 OF 1998
JUDGMENT
13-8-2007