## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE A.K.BASHEER**
**MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930**
## **CRL.A.No. 1882 of 2003(C)**
**-------------------------**
**AGAINST THE JUDGEMENT/ORDER IN CRLP.401/2003 CC.292/1997 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA ....................**
## **APPELLANT/COMPLAINANT:**
**--------------------------------**
## **K.C.THOMAS, AGED 47, KALACKATTETHU HOUSE, OLAKETTYAMBALAM, THEKKEKKARA, MAVELIKKARA.**
**BY ADV. SRI.RASHEED C.NOORANAD**
## **RESPONDENTS/ACCUSED:**
**-------------------------------**
**1. P.PAPPACHAN, S/O. PHILIPPOS, BETHEL HOUSE, PARAKKADU, ADOOR.**
## **2. STATE OF KERALA,**
- **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.**
**BY PUBLIC PROSECUTOR SRI.C.M.NAZAR ADV. SRI.K.SASIKUMAR**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## A.K.BASHEER,J
========================= Crl.Appeal.No.1882 of 2003 ========================== Dated this the 24[th] day of March, 2008
## JUDGMENT
Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. Though the complainant had sought to prosecute respondent No.1 herein under Section 420 I.P.C read with Section 138 of the Act, the learned Magistrate had taken the complaint on file and issued process to the accused only for the offence punishable under Section 138 of the Act. The learned Magistrate after considering the oral and documentary evidence on record held that the prosecution had not succeeded in proving the charge against the accused particularly since, admittedly the accused had closed his account prior to the issuance of the cheque. I will deal with the other reasoning of the learned Magistrate for holding the accused not guilty, a little later.
2. The case of the complainant before the court below was that he was engaged in the business of collecting agricultural products like coconut, cashew nut etc. from the local growers and supplying them to dealers and traders at Parakkadu
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public market. The accused who was a Gulf returnee had been engaged in the business of wholesale purchase and sale of cashew nuts apart from other hill products in Parakkadu public market. During 1996 the accused had met the complainant and informed him that he was interested to purchase cashew nut during the season. The accused promised that he would pay 50 Ps. per kilogram in excess of the market rate if the complainant agreed to supply the entire cashew collected by him from the local growers. According to the complainant he had sold a total quantity of 10160 kgs of cashew nuts to the accused on different occassions during the said season. The accused had issued Ext.P1 cheque dated September 15, 1996 for a sum of Rs.90,912 towards the balance purchase price of cashew supplied by the complainant. But when the cheque was presented for encashment it was dishonoured with the endorsement “account closed”. Though the complainant issued a statutory demand notice to the accused, the liability was not discharged. The accused did not bother to send a reply also. It was in the above circumstances that the complainant had filed the complaint alleging inter alia that the action of the accused was punishable under Section 420 I.P.C. as well. It is seen from
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the proceedings of the trial court that the learned Magistrate forwarded the complaint to the local Police Station and called for a report. In the report the Station House Officer stated that the complainant and accused had had been doing cashew nut business and in connection with the same there was several monetary transactions between them. But according to the Police, there was nothing on record to show that the accused had committed the offence punishable under Section 420 I.P.C. Therefore the police had filed a final report referring the case as of civil nature. Thereafter the learned Magistrate had taken cognizance of the offence punishable under Section 138 of the Act.
3. The complainant was examined as PW1 and Exts.P1 to P8 were marked on his side. The accused got himself examined as DW1 and Ext.D1 was marked on his side. As mentioned earlier, the learned Magistrate found that the complainant had not succeeded in proving the charge against the accused and accordingly he was acquitted.
4. Learned counsel for the accused while defending the impugned order contends that the learned Magistrate was justified in taking the view that he was away in the Gulf in
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June 7, 1995 as was clearly revealed from the entry in Ext.D1 passport. It is true that in Paragraph 6 of the complaint it was averred thus :-
“The accused thus purchased 2,800 kg of cashew nuts in 35 bags on 7.6.95, 2560 kg in 32 bags on 19.6.95 and on the same day in the evening another 60 bags weighing 4800 kgs. The weights of these cashew nuts purchased by him were recorded by him bag wise and a chit was given to the complainant. But the chit of the 60 bags of cashew nuts purchased on the evening of 19.6.1996 was not given to the complainant who was under going treatment as an inpatient in the ST.Thomas Mission Hospital, Kattanam. Therefore the accused who had obtained the Cashew nuts after putting her to believe that the chit will be handed over to the complainant on the next day.” (emphasis supplied)
5. The case of the accused before the court below was
that he had gone to Saudi Arabia on July 19,1994 and had returned to India on November 17,1995. The above contention was of course supported by the relevant entries in Ext.D1 passport. Thus on the face of it the contention raised by the accused that he was not in the country on June 7, 1995 was unimpeachable and the entire case of the accused was largely built on this contention. The learned Magistrate was persuaded to accept the above contention.
6. But in Paragraph 3 of the complaint, the complainant had categorically stated that the accused had requested him to
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supply cashew nuts to be collected during the 1996 season. The complainant had further narrated as to how the business transaction had taken place between him and the accused in furtherance of the said request made by the accused, and he had also referred to various dates between June and November 1996 on which supply of cashew nuts had been made during the season. Obviously, therefore the reference to the date 7.6.95 in paragraph 6 of the complaint was patently a typographical error. Therefore the entire case set up by the accused based on the entry in Ext.D1 passport about his absence from the country on June 7,1995 falls to the ground.
7. There is yet another aspect of the matter. The case of the accused was that while going to the Gulf he had sold his business in hill produce to his nephew one George Kunjandi. According to the accused he had no business transaction with the complaint at all, as alleged in the complaint. On the contrary, Geroge Kunjandi and the complainant had been having some business transactions. It was contended by the accused that Geroge Kunjandi owed some money to the complainant. In connection with the said liability, Kurathikad police had arrested the accused in Crime No.191/96 and taken him to the Police
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Station where he was threatened and coerced to handover a blank signed cheque. According to the accused he was constrained to issue the cheque because of fear of he being implicated in a criminal case. He had telephoned his son who came with a blank cheque which he had signed under threat and intimidation from the Sub Inspector at Kurathikadu Police Station. The said cheque was misused by the complainant to launch the prosecution against him, it is contended.
8. It is pertinent to note that in cross examination the accused had admitted that he had not taken any steps against the Police Officials who had illegally arrested and obtained a blank signed cheque from him under duress. Of course it was vaguely contended by him that he had lodged a complaint before the DYSP in this connection. He stated that DYSP had not taken any action in the matter. But the accused had not adduced any evidence in support of the above contention.
9. It may be remembered that the specific case of the accused was that he was arrested from his residence and taken to Kurathikad Police Station in connection with Crime No.191/96 and it was in that case that he was forced to issue a blank signed cheque and that too in connection with the alleged liability of his
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nephew. Curiously the accused did not remember the date on which he was allegedly forced to hand over the blank signed cheque.
10. It is also pertinent to note that in the course of cross examination the accused was asked whether he had handed over a chit containing certain figures with regard to the accounts between the complainant and himself. The said chit was shown to the accused while he was being examined and asked whether it was not in his own hand writing. The accused answered in the negative. He further stated that he did not know how to read. It is seen from the court records that the accused had written his name in English along with his signature in all the court records. It is hard to believe that he did not know how to read. I have referred to this aspect of the case only to indicate that the accused did not seem to bother to go to any extent in his attempt to wriggle out of the liability. He had tried to take advantage of one typographical error that made by the complainant in paragraph 6 of the complainant. Unfortunately the learned Magistrate had disbelieved the entire case of the complainant relying on the said inadvertent typographical mistake.
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11. The learned Magistrate had also relied on a decision of this Court in **Joseph v. Philip Joseph (2000 (2) KLJ 679)** in which it was held that an offence under Section 138 of the Act would not be attracted if the accused had closed his account prior to issuance of the cheque. But it is the admitted position that said decision had been overruled by this court later. Therefore the view taken by the learned Magistrate on the basis of the above decision in Joseph's case cannot be sustained.
12. Having regard to the entire facts and circumstances, I have no hesitation in holding that the order of acquittal is wholly unsustainable and illegal. The order passed by the court below is set aside. The accused is found guilty under Section 138 of the Act, and he is accordingly convicted and sentenced to undergo simple imprisonment for one year. He shall surrender before the court below on April 15, 2008, failing which the court below shall take appropriate steps to execute the sentence forthwith.
Criminal appeal is allowed.
A.K.BASHEER,JUDGE
dvs
