## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**TUESDAY, THE 26TH DAY OF MAY 2020 / 5TH JYAISHTA, 1942**
## **CRL.A.No.2159 OF 2005**
**AGAINST THE JUDGMENT IN CRL.APPEAL NO. 332/2001 DATED 10-08-2005 ON THE FILE OF THE SESSIONS COURT,THALASSERY**
**AGAINST THE JUDGMENT DATED 31.05.2001 IN C.C. NO.253 OF 1999 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, KANNUR**
## **APPELLANT/COMPLAINANT:**
**A.K.BHASKARAN**
**S/O.KANARAN, PUTHIYOTTUMKANDY HOUSE, CHEMMARATHODE AMSOM, VADAKARA.**
## **BY ADV. SRI.P.K.RAVISANKAR**
## **RESPONDENTS/STATE & ACCUSED:**
**1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**2 K.M.ASHARAF, S/O.MOIDEEN, ADVOCATE, AYISHA MANZIL, IRIKKUR P.O.**
**R1 BY SRI.SANTHOSH PETER, SR.PP R2 BY ADV. SRI.BLAZE K.JOSE**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
CRL.APPEAL NO.2159 OF 2005 2
## **J U D G M E N T**
This appeal is filed against the judgment dated 10.08.2005 in Crl.Appeal No.332 of 2001 on the file of
the Sessions Court, Thalassery. The learned Sessions
Judge was pleased to set aside the conviction and sentence imposed on the 2nd respondent by the learned
Judicial First Class Magistrate-II, Kannur, as per the judgment dated 31.05.2001 in C.C. No.253 of 1999 (hereinafter the parties are mentioned in accordance with their rank before the trial court).
2. The case of the complainant is that, to clear off a debt due to him, the accused had issued a cheque bearing No.0497365 of the Canara Bank, Irikkur branch
for an amount of Rs.53,833/-. When the cheque was presented in the bank, the same was returned with an endorsement “funds insufficient”. The complainant sent a lawyer notice to the accused about the dishonour of
CRL.APPEAL NO.2159 OF 2005 3
the cheque. Notice was received by the accused and he sent a reply denying the averments in the notice. Since the amount is not paid, the complainant filed the present complaint.
3. To substantiate the case, the complainant
himself was examined as PW1. Exhibits P1 to P6 are the exhibits on the side of the complainant. Exhibits D1 and D2 are the exhibits marked on the side of the defence. On going through the evidences and documents, the learned Magistrate found that, the accused committed the offence under Section 138 of the
Negotiable Instruments Act. Hence, he was sentenced to undergo simple imprisonment for a period of three months.
4. Challenging the conviction and sentence, the
accused filed an appeal before the Sessions Court, Thalassery. The Sessions Court, after hearing both
sides, allowed the appeal and was pleased to set aside the conviction and sentence imposed by the trial court. Hence, this appeal.
CRL.APPEAL NO.2159 OF 2005 4
5. Heard the learned counsel for the complainant,
accused and the learned Public Prosecutor.
6. The learned counsel for the complainant
submitted that, the trial court after considering all the aspects of the case, convicted the accused and there is nothing to interfere with the order of the learned Magistrate by the appellate court. The counsel
submitted that, the appellate court, on flimsy reasons, allowed the appeal and acquitted the accused. According to the complainant, the grounds on which the accused was acquitted by the appellate court are unsustainable.
7. The learned counsel for the accused supported the judgment of the appellate court. He submitted that, the appellate court, after re-appreciating the
evidences, was pleased to set aside the conviction and sentence. According to the counsel, there is nothing to interfere with the acquittal order passed by the learned Sessions Judge.
8. I considered the contentions of both parties. I find force in the contention of the accused. The
admitted case of the complainant is that, the accused
CRL.APPEAL NO.2159 OF 2005 5
issued a cheque for Rs.53,833/- for the amount due to
him from the accused. According to the complainant, a total amount of Rs.55,000/- was borrowed by the accused and he paid an amount of Rs.1,167/- and for the balance amount, Ext.P1 cheque was issued. First of all, this is not a transaction in connection with any purchase of article or anything like that. The very case of the complainant that an amount of Rs.55,000/- was borrowed by the accused and the accused paid Rs.1,167/- keeping a balance of Rs.53,833/- and issued a cheque for Rs.53,833/-, is a story difficult to accept, when there is no corroborating evidence to the same. In this case, there is only the uncorroborated testimony of the complainant. The complainant had filed another case as C.M.P. No.4556 of 1999 against the accused for cheating before the lower court and it was sent up for investigation by the police. But the police referred the case. PW1 was not able to state as to when exactly the accused had borrowed the amount and whether it was before or after filing C.M.P No.4556 of 1999. There was no mention of the borrowal of Rs.55,000/- alleged
CRL.APPEAL NO.2159 OF 2005 6
in C.M.P. No.4556 of 1999. Certified copy of the
complaint filed by PW1 before the Judicial First Class Magistrate-II, Kannur as C.M.P. No.4556 of 1999 and the
F.I.R. in Crime No.61 of 1999 registered by Irikkur Police based on the above complaint was also produced before the appellate court. The certified copy of the refer charge No.22 of 2000 in Crime No.61 of 1999 of
Irikkur Police was also produced before the appellate court.
9. Moreover in the present complainant, the
issuance of cheque towards a debt due alone is
mentioned. The origin of the transaction or other circumstances pertaining to the issuance of cheque was
not mentioned in the complaint. On this ground itself,
the accused is entitled to an acquittal. In Divakaran
v. State of Kerala [2016 (4) KLT 233], this Court
observed like this:
_“20. In a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But_
CRL.APPEAL NO.2159 OF 2005 7
_unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.”_
In the light of the above judgment itself the accused is entitled to acquittal.
10. Moreover in Ext.D1, it is mentioned that,
Ext.P1 cheque was issued towards settlement of account in the partnership arrangement. Exhibit D1 was issued by the accused on 01.03.1999. In Ext.D1, the accused
stated that, though a settlement was arrived at in respect of the account, there was some mistake in the
quantification showing that the amount assessed and
quantified was not correct as shown in the cheque. Hence, it is clear that, much earlier to the date of Ext.P1 cheque [10.03.1999], ie. on 01.03.1999, the accused issued Ext.D1 notice requesting the complainant to return the cheque for proper assessment and
CRL.APPEAL NO.2159 OF 2005 8
quantification and also requesting him not to present the cheque before the bank. Exhibit D1 cheque was received by the complainant on 03.03.1999. Thereafter, the cheque was presented by the complainant and it was dishonoured on 16.03.1999. When Ext.P3 statutory notice was issued by the complainant, the accused sent Ext.P6 reply to the same. Without considering these facts, the complainant filed the complaint. The evidence of PW1 in the light of Ext.D1 would show that, the transaction was in respect of the partnership arrangement. But according to the complainant, it is an independent transaction between the complainant and the accused. But there is no such plea either in the complaint or in the lawyer notice issued. Only when PW1 was examined, he stated about the borrowal of Rs.55,000/- and repayment of Rs.1,167/- and thereafter, for the balance amount, Ext.P1 cheque was issued. In such
circumstances, the appellate court observed that the complainant has not proved the case. The appellate court considered each and every aspects of the case and considered all the evidences available in the case.
CRL.APPEAL NO.2159 OF 2005 9
I think, there is nothing to interfere with the order
passed by the appellate court.
Hence, this Crl.Appeal is dismissed confirming the order dated 10.08.2005 in Crl.Appeal No.332 of 2001 on the file of the Sessions Court, Thalassery.
## **Sd/-**
**P.V.KUNHIKRISHNAN**
## **pkk**
**JUDGE**
