IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 69 of 1999()
1. VIJAYAN
... Petitioner
Vs
1. GOPALAKRISHNAN
... Respondent
For Petitioner :SRI.S.SANTHOSH KUMAR
For Respondent :SRI.G.PRABHAKARAN
The Hon'ble MR. Justice K.THANKAPPAN
Dated :23/05/2007
O R D E R
K. Thankappan, J.
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Crl. A. No. 69 of 1999
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Dated this the 23rd day of May, 2007
JUDGMENT
Judgment in S.T.No.1488/97 on the file of the Court of the Judicial
First Class Magistrate-I, Haripad is assailed in this appeal. The
complainant/appellant filed the complaint under section 138 of the
Negotiable Instruments Act alleging that the 1st respondent had borrowed an
amount of Rs.60,000/- from him and in discharge of the said liability, he had
given a cheque for Rs.60,000/- in favour of the appellant and when the
cheque was presented for encashment, the same was dishonoured due to
insufficiency of fund in the account of the 1st respondent. On receipt of
intimation of dishonor of the cheque, a lawyer’s notice was caused to the
respondent demanding of the amount covered by the cheque. Since the
amount was not paid by the 1st respondent, the complaint has been filed
before the court. To prove the case against the 1st respondent, the appellant
himself was examined as PW1 and the Manager of the bank was examined
as PW2. Exts.P1 to P8 were marked on the side of the appellant. . After
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closing the evidence of the prosecution, the 1st respondent was questioned
under section 313 Cr.P.C. He denied the allegation. In his written statement
he stated that he borrowed Rs.6,000/- from the appellant. After considering
the entire evidence, the trial court acquitted the 1st respondent on the ground
that the appellant had failed to establish his case beyond reasonable doubt
by giving cogent and convincing evidence.
2. Heard learned counsel for the appellant and the learned Public
Prosecutor.
3. The judgment of the trial court would show that the appellant had
stated before the court that the cheque was for an amount of Rs.6,000/-. The
above version is contrary to the averments contained in the complaint. In his
313 statement the case set up by the 1st respondent is that he had borrowed
Rs.6,000/- from the appellant.
4. In the above circumstances, this Court is of the view that the
learned Magistrate has not considered the evidence and had not perused the
records. There is no finding entered by the trial court that the 1st respondent
has not issued the cheque and the cheque was not signed by the 1st
respondent.
5. In the above circumstances, this Court is of the view that the
judgment under challenge is liable to be set aside and the matter has to be
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remitted to the trial court for fresh consideration. Ordered accordingly. The
trial court is directed to consider the matter afresh as per law from the stage
of evidence. Both the appellant and the 1st respondent shall be given an
opportunity to adduce additional evidence, if any, to substantiate their case.
The parties shall appear before the court below on 21-7-2007
K. Thankappan,
Judge.
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K. Thankappan,J.
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Crl.A.69 of 1999
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Judgment
23-5-2007