IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 499 of 2001()
1. THOMAS VARGHESE
... Petitioner
Vs
1. GIBI JOSEPH
... Respondent
For Petitioner :SRI.P.M.KUNJIMOIDEENKUTTY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :28/03/2008
O R D E R
A.K. Basheer, J.
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Crl.A.No. 499 of 2001
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Dated this the 28th day of March, 2008.
Judgment
Appellant is the complainant in a prosecution under Section
138 of the Negotiable Instruments Act. He challenges the order of
acquittal passed by the trial court holding that the complainant had
failed to produce “the duly certified ledger extract of the account of
the accused to prove that the cheque was bounced for insufficiency
of funds”.
2. The case of the complainant was that the accused had
borrowed a sum of Rs.10,000/- on February 18, 1998 promising to
repay the same within 2 or 3 days. The accused had issued Ext.P1
cheque on the date of borrowal itself requesting the complainant to
present it for encashment after 2 or 3 days. However when the
complainant presented the cheque for encashment, it was
dishonoured due to insufficiency of funds in the account of the
accused. Though the complainant issued a statutory demand notice
to the accused, it was returned unclaimed. Hence the complaint.
3. The complainant got himself examined as Pw.1 and Exts.P1
to P5 were marked on his side. There was no oral or documentary
evidence on the side of the defence. After evaluating the evidence
on record, the learned Magistrate found that the accused had issued
Ext.P1 cheque in discharge of a legally enforceable debt. But the
learned Magistrate took a strange view that the complainant had
Crl.A.499/2001. 2
failed to prove that the cheque had bounced for insufficiency of funds.
According to the learned Magistrate the complainant ought to have
produced the “duly certified ledger extract of the account of the
accused” to show that funds were insufficient in the account of the
accused. Ext.P2 memo issued by the Bank clearly indicated that the
cheque was dishonoured due to insufficiency of funds in the account of
the accused. According to the learned Magistrate the said memo was
not proved properly. I have no hesitation to hold that the view taken by
the learned Magistrate is patently unsustainable. Therefore the order of
acquittal is liable to be set aside.
4. It may also be noticed that the accused had not bothered to
adduce any evidence in the case. In Section 313 statement his only
contention was that he had paid Rs.5,000/- to the complainant towards
the liability on May 7, 1998. He further contended that he had paid a
further sum of Rs.2,000/- thereafter. But no evidence was adduced to
substantiate the above contention. More importantly, the accused did
not have a case that he had not issued Ext.P1 cheque towards
discharge of the liability incurred by him.
5. Having regard to the entire facts and circumstances I am
satisfied that the complainant had established his case satisfactorily.
Therefore the order of acquittal passed by the court below is set aside.
Though respondent No.1 accused had been served with notice he has
not appeared before this Court either in person or through counsel.
Therefore before sentencing him he has to be afforded an opportunity
to be heard on sentence. Therefore the case is remitted to the court
Crl.A.499/2001. 3
below which shall pass appropriate orders on sentence after hearing the
accused. The court below shall dispose of the case as expeditiously as
possible, at any rate within two months from the date of receipt of a
copy of this judgment.
Parties shall appear before the court below on June 11, 2008.
A.K. Basheer
Judge.
an.