CRL.A No. 189 of 2004 · Kerala High Court

P.Q. BARKATH ALI, J.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=Crl.A. No. 189 of 2004 A =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=Dated this the 24th day of February, 2012JUDGMENTAppellant is the complainant in C.C.No.308/1999 onthe file of the Judicial Magistrate of the First Class, Pala. Hefiled a complaint under section 138 of the NegotiableInstruments Act against the accused before the learnedMagistrate. The learned Magistrate by impugned judgmentdated October 6, 2003 found the accused not guilty of theoffence alleged against him and acquitted him. Thecomplainant has now come up in appeal by special leavechallenging the said judgment of the learned Magistrate.2. The case of the complainant, as testified by him asPW1 before the lower court and as detailed in thecomplaint, in brief, is this:- PW1 is the proprietor of amanufacturing unit by name M/s.ParisFertilizers. Theaccused purchased manure from the complainant and inthat dealings `70,000/- was due to the complainant from theaccused and to discharge that liability the accused issuedfour cheques one for `10,000/- and others `20,000/- each.

CRA 189/20042Ext.P1 is the cheque for `20,000/- dated January 31, 1998.When the cheque was presented for collection, it wasreturned dishonoured for want of sufficiency of funds in theaccount of the accused in the bank. In spite of noticeExt.P4 dated June 20,1998, the accused did not repay thesame. Therefore, the complainant filed the complaint beforethe lower court under section 138 of the NegotiableInstruments Act. 3. The learned Magistrate, on receipt of thecomplaint, recorded the sworn statement of thecomplainant and took cognizance of the offence. Theaccused on appearance before the trial court, pleaded notguilty to the charge under section 138 of the NegotiableInstruments Act. The complainant was examined as PW1and Exts.P1 to P8 were marked on his side. When theaccused was questioned under section 313 Cr.P.C. by thelearned Magistrate, he denied the transaction. Hesubmitted that no amount is due to the complainant, thathe was forced to open an account in the Thamarakkulam CRA 189/20043Branch of S.B.T. by the complainant and made to sign on 10cheque leaves after intimidating him.

One of those chequeswas misused by the complainant and created Ext.P1. In anattempt to prove his case, the accused examined DW1, thepresent Manager of the S.B.T., Thamarakkulam Branch andmarked Ext.D1.4. On an appreciation of the evidence, the lower courtfound the accused not guilty of the offence punishableunder section 138 of the Negotiable Instruments Act andacquitted him. The complainant has now come up in appealchallenging the said judgment of the lower court.5. Heard the learned counsel for theappellant/complainant and the learned counsel for the 2ndrespondent/accused.6. The following points arise for consideration:-1) Whether the judgment of the lower courtacquitting the accused can be sustained?2) What is the offence committed by the accusedand in the event of conviction, what is theproper sentence? CRA 189/200447. The lower court acquitted the accused on theground that there was no proper notice as contemplatedunder proviso (b) to section 138 of the NegotiableInstruments Act.

The cheque Ext.P1 was issued to M/s.ParisFertilizers. No document is produced by PW1 to show thathe was the proprietor of the said firm. Further Ext. P4notice was issued by the complainant in his personalcapacity and not as the proprietor of the firm. Therefore, itcannot be said that there is proper notice issued by thecomplainant demanding the amount as contemplated underthe proviso (b) to section 138 of the Negotiable InstrumentsAct. 8. That apart Ext.P7 shows that the account wasopened on October 7, 1997 and on that day itself `2,000/-was withdrawn from the said account. Thereafter, therewas no transaction. The above fact clearly probabilises theversion of the accused that he was forced to open the saidaccount and that the complainant made the accused toissue a batch of cheque leaves signed by the accused. CRA 189/200459. For all these reasons, I am in complete agreementwith the findings of the lower court that the complainanthas failed to prove that Ext.P1 cheque was issued by theaccused in discharge of a legally enforceable debt and thatthere was no proper notice issued as contemplated underproviso (b) to section 138 of the Negotiable InstrumentsAct. It follows that the complaint is not maintainable.10. In the result, I find no merit in the appeal and thesame is hereby dismissed.P.Q. BARKATH ALI,JUDGE.mn