Full Judgment
2. The appellant filed a complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act, on the allegation that accused borrowed an amount of Rs.4,38,000/- from complainant on 10.1.2002 for business purpose and thereafter, he issued four cheques to complainant, when demands were made for payment. The cheques, on presentation were dishonoured. A lawyer notice was issued to accused, demanding payment, but no reply was sent and hence the complaint was filed.
3. On analysis of evidence adduced in this case, court below found that complainant's case is wholly false and acquitted the accused. According to learned Magistrate, admission of complainant about defence case suggested to him in cross-examination disproves his case. The admissions made by him are recorded as such, in paragraph 9 of the order.
4. Learned counsel for appellant argued that there is ample evidence in this case. The appellant has given evidence that accused borrowed Rs.4,30,000/- from complainant and he also issued cheques for discharge of the debt. It has also come out from evidence that towards such debt, the accused paid Rs.1,00,000/- during the pendency of the case. Therefore, it cannot be said that this is a case where there was no incriminating evidence at all against the accused, it is argued. But, the trial court did not even question the accused under Section 313 Cr.P.C. and without hearing the complainant, accused was acquitted.
5. Learned counsel for the accused/respondent argued that the case of the appellant is false, in the light of the various admissions made by appellant in the cross examination, while examined as PW1. It is also submitted that no prejudice is caused to the appellant, because of omission to question him under Section 313 Cr.P.C. Learned counsel for appellant pointed out that immediately on completion of evidence of PW1, trial court closed the evidence, and recorded that there is no incriminating evidence against accused. The complainant was not even heard and accused was acquitted. The learned Magistrate has not even given an opportunity to the complainant to adduce evidence.
6. On hearing both sides and on going through the order under challenge and the proceeding sheet, I am satisfied that the procedure adopted by the trial court was wholly illegal. The refusal to give any opportunity to the complainant to produce any evidence was not proper. On going through the evidence of PW1, it appears that there are incriminating materials in evidence to question the accused under Section 313 Cr.P.C. An appreciation of evidence, on the basis of the evidence given in chief examination and cross examination is different from identifying the incriminating evidence for questioning the accused under Section 313 Cr.P.C. The court has wrongly dispensed with the questioning under Section 313 Cr.P.C.
7. It can also be seen from paragraph 9 of the order that complainant made certain vital admissions which are quoted in the judgment in Malayalam. From the portions extracted in the impugned order, it can be seen that to several questions, the complainant did not give any answer at all. The fact whether such silence would amount to admission or not is
to be considered before treating it as admission and proceeding with the case. An admission is different from the effect of a silence or failure to give answer. In the above circumstances, I find that the order under challenge is unsustainable and hence, the following order is passed:
(i) The impugned order is set aside.
(ii) The case is remanded to the trial court for fresh consideration and disposal in accordance with law.
(iii) I make it clear that the appellant shall be given an opportunity to adduce further evidence on his side.
(iv) The parties shall appear before the trial court on 10.1.2011.