IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY,THE13H DAY OF FEBRUARY201424TH MAGHA, 1935 CRL.A.No. 1989 of 2004 ( ) --------------------------- CC7132000 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-I,ERNAKULAM APPELLANT(S)/COMPLAINANT: ------------------------------------------------ FASHION TRACK, COCHIN COMPLEX, MARKET ROAD, ERNAKULAM REP.BY ITS MANAGING PARTNER - C.Y.A.RASHEED. BY ADVS.SRI.K.I.MAYANKUTTY MATHER SRI.SUNIL SHANKER RESPONDENT(S)/ACCUSED AND STATE: --------------------------------------------------------- 1. SUNIL KUMAR, BIZZY GIRL FASHIONS, NEW MUNICIPAL COMPLEX, PALA.
2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BYADV.SRI.P.A.MARTIN ROY R2 BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON1302-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.HARIPRASAD, J.
-------------------------------------- Crl.Appeal No.1989 of 2004 -------------------------------------- Dated this the 13th day of February, 2014. JUDGMENT
Appeal filed under Section 378(3) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Trial court dismissed the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act (for short, "Act") and acquitted the accused/1st respondent. Aggrieved by that judgment, the complainant has come up in appeal.
3. Facts, stated briefly, are as follows: Complainant is a partnership firm represented by its Managing Partner. The firm is carrying on whole sale business in garments and clothing. Accused used to purchase goods from the complainant on credit basis. In one of such transactions, he issued Ext.P3 cheque to discharge the liability towards the complainant. When the cheque was presented for collection, it was dishonoured for want of money in the account of the accused. A statutory notice was issued which is marked as Ext.P5. In spite of receiving the notice, the accused did not send a reply. Hence the complaint was filed.
4. Before the trial court, PW1 and DW1 were examined and Exts.P1 to P6 and D1 to D3 were marked. Crl..Appeal No.1989/2004 2 5. Heard the learned counsel for the appellant. There is no representation for the accused. I have carefully perused the records.
6. PW1 testified in accordance with the averments in the complaint. According to him, Ext.P3 cheque was issued to discharge a liability which had arisen out of business dealings between the complainant and the accused. The execution of the cheque is not disputed. Case of the accused is that the disputed cheque was a blank cheque and it was filled up against the instruction of the accused and presented it for collection. The trial court considered the evidence and found that Ext.P3 cheque did not reveal any legally enforceable debt as claimed by the complainant. Learned counsel for the appellant contended that Ext.P2 ledger account would show the outstanding liability of the accused towards the complainant. In discharge of that liability, Ext.P3 cheque was issued. Court below placed reliance on Ext.D1. It is a chit allegedly written by the accused to the complainant. Ext.D1 would show that the accused wanted `1,00,000/- to be sent through the bearer of the chit. In Ext.D1, it is further instructed to the complainant that the blank cheque given to him should not be presented before the bank as the accused was intending to continue business relationship with the complainant. Court below found that the cheque mentioned in Ext.D1 is Ext.P3. Learned counsel for the appellant contended that there is no evidence to link Ext.P3 with the cheque mentioned in Ext.D1 as part of series of business transactions it was the Crl..Appeal No.1989/2004 3 trade practice to get cheques. The figures will be arrived at after taking stock of the accounts. Court below erroneously assumed that Ext.P3 cheque was a blank cheque issued without consideration and that is sought to be stopped by Ext.D1. The accused did not choose to deny the execution of the cheque. Presumptions under Sections 118 and 139 of the Act have not been considered by the court below. Evidence tendered by PW1 would fortify the pleadings in the complaint. I find that dismissal of the complaint and acquittal of the accused were legally unsustainable. In the result, the appeal is allowed. Dismissal of the complaint in C.C.No. 713 of 2000 on the file of Judicial First Class Magistrate Court-I, Ernakulam is hereby set aside. Accused is convicted for an offence under Section 138 of the Negotiable Instruments Act. He shall undergo imprisonment till the rising of the trial court and pay compensation to the complainant `89,325/-(Rupees Eightynine thousand three hundred and twentyfive only) being the cheque amount and in default of payment, it shall be recovered as if it is a fine. Court below shall issue a bailable warrant calling upon the accused to serve the sentence. A. HARIPRASAD, JUDGE. cks