Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942 CRL.A.No.480 OF 2005 AGAINST THE JUDGMENT IN ST 1932/2001 DATED 30-11-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR APPELLANT/COMPLAINANT: SANDESH NARAYANAN S/O V.N. MENON, “SANTHI”, CHIYYARAM, THRISSUR. BY ADV. PARTY IN PERSON RESPONDENTS/ACCUSED & ANOTHER: 1 GOPALAKRISHNAN S/O UNNERIKKUTTY, NATTUVETTY HOUSE, P.O.KOORKANCHERY, THRISSUR 680 007. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.GOPALAKRISHNAN PARTY R2 SR.PUBLIC PROSECUTOR SRI. B. JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.480/2005 2
JUDGMENT
Dated this the 30th day of June 2020 The above appeal is filed by the complainant in S.T.No.1932 of 2001 on the file of the Judicial Magistrate of First Class-II, Thrissur. The complaint was filed by the appellant against the first respondent herein for prosecuting him under Section 138 of the Negotiable Instruments Act.
2. When this appeal is pending, the counsel who was
appearing for the first respondent expired, and hence, this court ordered notice to the first respondent on 21.7.2011. Fresh notice was ordered to the first respondent on 7.11.2019. When the case came up for consideration on 17.3.2020, this court passed the following
order :
“No representation for the appellant. No steps have been taken as against the first respondent. Issue repeated notice to the first respondent by speed post.” Even then, no steps have been taken to serve notice to the first respondent. Therefore, this court passed an order on 3.6.2020, which is extracted herein below : Crl.A.No.480/2005 3 “Issue notice to the appellant informing that the above appeal is posted in the defect list on 12.6.2020. Registry also should inform that, even though the appeal is in the defect list, the appellant should argue the appeal on merit for taking further steps in this case.”
3. Now notice is served to the appellant. But the appellant
refused to appear before this court either in person or through counsel. This is an appeal against acquittal. This appeal is pending from 2005 onwards. There is no purpose in keeping pending this appeal because the appellant is not interested.
4. In Union Territory Lakshadweep Administration v.
Sayed Ahammed Koya Thangal in (2016 (3) KLT 732), this court observed that an appeal against acquittal once admitted cannot be dismissed for default. Therefore, I decided to consider this appeal on merit.
5. The appellant filed a complaint against the first
respondent for prosecuting him under Section 138 of the Negotiable Instruments Act. The case of the appellant is that the accused borrowed an amount of Rs.1,25,000/- from the complainant, and when the said amount was sought to be returned, he issued a cheque in favour of the complainant in the discharge of the said liability. The cheque, when presented for encashment, was bounced Crl.A.No.480/2005 4 due to 'insufficiency of funds' in the account of the accused. The accused did not repay the amount despite the issuance of statutory notice. Hence the complaint.
6. To substantiate the case, the complainant himself was
examined as PW1. Exts.P1 to P5 were marked on his side. DW1 and DW2 are the defence witnesses. Exts.D1 and D2 are the exhibits marked on the side of the defence.
7. After going through the evidence and the documents, the trial court found that the accused has not committed the offence. Aggrieved by the acquittal order, this Crl.Appeal is filed.
8. The trial court, after considering the entire aspects of the
case, found that Ext.P1 is not a cheque issued by the accused in discharge of a debt of any liability. The court also observed that there is no statutory notice issued by the appellant in accordance with law. The findings of the trial court are extracted hereunder :
“Ext.P3 is the copy of the statutory notice issued to the accused. In the statutory notice the address of the accused is Njattuvetty house, Peringottukara, Thrissur, 680565. But the postal envelope produced before court is not seen issued in the address as shown in P3. The returned postal envelope is marked as P5 which bears the address of the accused as Nattuvetty House, P.O.Koorkanchery, Thrissur, 680 007. The specific case of the accused is that he was not residing in the
Crl.A.No.480/2005 5
address shown in the postal envelope. The notice was sent to a different address by the complainant with an ulterior motive to deprive the accused in sending a proper reply to the statutory notice. This circumstance was elicited through the cross examination of the complainant. During the cross examination the complainant has given evidence before court that the accused is residing at Peringottukara which is a far away place from Koorkanchery. His further evidence would go to show that he had sent the statutory notice in the address as Koorkanchery. There is no case for the complainant that the accused was residing at Koorkanchery at any point of time. The postal envelope also would go to show that the addressee had left the station whose present whereabouts are not known. The Bank records produced in this case would also go to show that the accused is a permanent resident at Peringottukara. The malafide intention of the complainant is crystal clear from sending the statutory notice to an incorrect address. The evidence tendered by the accused appears to be more probable than that of the version of the complainant. An accused who is facing a criminal prosecution need only prove his case on the basis of probabilities. The evidence on record would go to show that the accused had remitted Rs.20,000/- to the complainant by way of Ext.D2. The evidence adduced by the accused is convincing and this court is inclined to hold that the burden on the accused in adducing rebuttal evidence is discharged. Therefore, this court is inclined to hold that Ext.P1 is not a cheque issued by the accused in discharge of a debt or any liability. Point No.1 is therefore found against the complainant.”
9. After going through the above findings, I think that the trial court considered all the aspects of the case and came to a definite
conclusion that the accused has not committed the offence. In such
Crl.A.No.480/2005 6 circumstances, there is nothing to interfere in an appeal against acquittal.
Hence this Crl.Appeal is dismissed confirming the judgment
dated 30.11.2004 in S.T.No.1932 of 2001 on the file of the Judicial Magistrate of First Class-II, Thrissur. Sd/- P.V.KUNHIKRISHNAN JUDGE csl