IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 847 of 2001()
1. T..H.BABU
... Petitioner
Vs
1. K.C.MUSTHAFFA
... Respondent
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.GIRI
Dated :11/03/2009
O R D E R
V.GIRI, J.
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CRL.A.No.847 of 2001
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Dated this the 11th day of March, 2009.
JUDGMENT
The complainant in S.T.No.5953/98 on the file of
the Judicial Magistrate of the First Class, Tirur, is the
appellant herein.
2. The accused was prosecuted for the offence
under Section 138 of the Negotiable Instruments Act, 1881
{for short ‘the Act’}. The court below, finding that the
evidence was inadequate to convict the accused, proceeded
to acquit the accused under Section 255(1) of the Code of
Criminal Procedure. Hence this appeal by the complainant,
after obtaining leave of this court.
3. The case of the complainant is that the accused
had borrowed an amount of Rs.1,40,000/- from the
complainant and issued Ext.P1 cheque. The cheque, when
presented to the bank, was dishonoured. Ext.P3 lawyer’s
notice was issued. There was no response thereto.
Thereafter the complaint was lodged.
CRL.A.No.847 of 2001
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4. The complainant was examined as PW.1. The
trend of the cross-examination of PW.1 is that the accused
had denied the transaction in its entirety. The explanation
on behalf of the accused for the complainant being in
possession of the cheque is that an unsigned blank cheque
leaf was handed over by the accused to one Sivaraman and
the complainant would have come into possession of the
same. The complainant affirmed that the accused had
brought a signed cheque leaf and handed over the same.
5. Learned counsel for the appellant contended
that what is crucial is not sending any reply to the notice.
Moreover, no tenable explanation is offered by the accused
for not responding to the reply notice. He merely contended
that his wife was admitted in the hospital. No records were
produced to show that it was actually so.
6. Learned counsel for the accused contended
that the complainant had the burden to prove that the
cheque was executed and issued by the accused, but the
same has not been done. I would have normally accepted
this contention, but for the fact that no reason whatsoever is
given for not sending any reply. It is noteworthy to note
CRL.A.No.847 of 2001
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that the complainant was a total stranger according to the
accused. But, according to the complainant, he and the
accused had known each other for 9 years. If the accused
had a case that the cheque leaf had been entrusted to one
Sivaraman and the complainant came into possession of the
cheque from him, the best evidence possible was to
examine the said Sivaraman as a witness. No such attempt
was made. The complainant, when he was examined,
stated that one of his neighbours Sri.Gopakumar is a witness
to the lending of money to the accused and issuance of the
cheque by the accused. But Sri.Gopakumar was also not
examined as a witness. Therefore, I am of the view that the
matter requires reconsideration by the court below. The
parties must be given a chance to lead additional evidence.
Accordingly, the appeal is allowed, the order of
acquittal is set aside and S.T.No.5953/98 is remitted back to
the trial court for fresh disposal. It is up to the parties to
lead any additional evidence and if additional evidence is let
in, obviously, the court below shall again record the
statement of the accused under Section 313 of the Code of
Criminal Procedure on such additional evidence. Fresh
CRL.A.No.847 of 2001
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orders may be passed within six months from the date of
receipt of records from this court. The lower court records
shall be re-transmitted to the trial court at the earliest. The
parties shall appear before the court below on 06.04.2009.
Sd/-
(V.GIRI)
JUDGE
sk/
//true copy//
P.S. to Judge