IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MRS. JUSTICE K.HEMA
FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 Crl.L.P..No. 117 of 2011() -------------------------CC.340/2009 of J.M.F.C. - IV, ERNAKULAM ....................
PETITIONER/COMPLAINANT(S):
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M/S.ASSOCIATED ELECTRICAL AGENCIES, 35, NUNGAMBAKKOM HIGH ROAD, MADRAS, REP. BY ITS POWER OF ATTORNEY HOLDER P.K.ASOKAN, S/O.KESAVAN, PERYINGALLI, PADINJAREVEETTIL, PATTANAKKAD P.O., ALAPPUZHA.
BY ADV. SRI.M.M.SAIDU MUHAMMED
RESPONDENT(S):
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1. M/S.CHITHRAVATHY TRADERS, NEAR AGRICULTURAL COLLEGE, VELLAYANI P.O., TRIVANDRUM, REP. BY ITS MANAGING PARTNER ANITHAKUMARI.
2. SMT.ANITHAKUMARI, MANAGING PARTNER, CHITHRAVATHI TRADERS, NEAR AGRICULTURAL COLLEGE, VELLAYANI P.O., TRIVANDRUM 695 522.
3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SRI.SABU SREEDHARAN.
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **K.HEMA, J. ----------------------------------------------Crl L.P. No.117 of 2011 ----------------------------------------------Dated 11[th] February, 2011.**
## **O R D E R**
This petition is filed for leave to file an appeal against an order of acquittal.
2.The appellant filed a complaint before Magistrate Court against a firm and its Managing Partners(R1 and R2 respectively), alleging offence under Section Section 138 of the Negotiable Instruments Act. According to complainant, the accused used to purchase articles from the complainant's branch office on credit basis and there was an outstanding liability of Rs.2,40,176/-. To discharge the said liability, “accused” issued a cheque for the said amount on 18.11.2002 drawn on the account maintained by “accused”. The cheque on presentation was dishonoured, for want of sufficient fund. A lawyer notice was issued demanding payment, but the amount was not paid. Hence, the complaint was filed.
3. To prove the prosecution case, PW1 was examined and Exts.P1 to P8 were marked. The accused took up a contention that no cheque was issued, as alleged. A blank
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cheque was given in connection with another transaction and the said cheque was misused by complainant to file a false complaint.
4. The trial court, on analysis of the evidence found that the case set up by accused that it was a blank cheque issued on a different date as security was probable and it was accepted. It was held that the prosecution did not prove that Ext.P1 cheque was issued, as alleged. The trial court also took note of the discrepancy in the evidence of PW1 regarding execution. In paragraphs 11 and 12 of the judgment, it is held as follows :
“Now regarding the issuance of cheque the specific contention put forward by PW1 is that Ext.P2 cheque was brought by the 2[nd] accused, issued the same to the complainant. To a question put in cross examination, PW1 would say that cheque was issued one week before the date on which it was presented before the bank. After the cross examination, PW1 was re-examined. Later on his own application he was recalled and again examined. At no point of time he retracted from his earlier stand that the charge was issued one week before its presentation.
As stated earlier, the definite case of the accused
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is that the cheque was issued as a blank cheque as security. To substantiate their contention, the accused produced Ext.D1 and D2 documents. D1 is a certificate issued by the Branch executive of the complainant. It is dated 10.3.1995. The said certificate will prove that from 16.10.2003 onwards, the 1[st] accused firm is the authorised dealier to distribute the products 'Nippo dry cells and Nippo torches' of the complainant's company in certain parts of Trivandrum. Ext.D2 is the letter issued by the complainant company to the accused on 31.1.2001. There it is clearly stated that complainant received the blank cheque No.175213 of State Bank of Travancore only as a security measure for the supplies being made on credit basis.”
5. The trial court also found that accused produced documents as Exts.D1 and D2 to establish that the cheque was handed over prior to 31.1.2001. But, the case of complainant is that the cheque was issued on 18.11.2002. While PW1 was confronted with both the above documents, he admitted the documents and its contents. Therefore, it was held by trial court that the case put forward by the complainant regarding issuance of cheque is not correct. The relevant observations in
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## paragraph 12 of the judgment are as follows :
“PW1 was confronted with both these documents. He admitted both the documents and its contents. That being so, it is very much clear that the case put forward by the accused that Ext.P2 cheque was issued as a blank cheque as security stands proved. Ext.D2 letter will reveal that the cheque was handed over before 31.01.2001. ---------corollary it can be said that the case put forward by the complainant is not true.”
6. I do not find any reason to interfere with the above findings. Learned counsel for petitioner only stated that the documents were produced by the accused at a belated stage etc., In the light of the admission made by PW1 in evidence and in the absence of any dispute on the genuineness of document, the belated production is of no consequence and trial court correctly appreciated the evidence and come to a conclusion regarding execution.
7. The trial court also observed that even if the contention raised by complainant that complainant has the authority to fill up the cheque and present it, there is absolutely no evidence to show that as on the date of the cheque, total
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amount due comes to Rs.2,40,176/-, the amount covered by Ext.P1. The trial court found that the complainant has not produced the accounts kept and maintained in its office to prove the exact liability, which could be the best evidence to prove the existing liability. The trial court hence held that complainant failed to prove that there was any legally enforceable debt.
8. Learned counsel for petitioner argued that there is some inconsistency in the defence set up by the accused. At one point, even the execution was denied, but, later it was contended that the cheque was handed over in blank form etc., it is submitted. The trial court took note of the contention of the complainant that accused had not issued a reply notice on behalf of the complainant. The trial court held, referring to nonissuance of a reply thus : “that will not in any way help the complainant. Being a criminal proceedings, the accused has every right to keep silence and the burden is upon the complainant to prove its case. The end result is that the accused cannot be found guilty for the offence punishable
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under Section Section 138 of the Negotiable Instruments Act.”
9. On going through the impugned order, I am satisfied that the trial court considered the matter in the right perspective. It has appreciated the evidence also in correct lines and there is absolutely no reason to interfere with the findings and the order of acquittal. It appears that a contention was raised in the light of the decision reported in **Mohanan v. Bibhu Kumar** (2003(2) KLT 825) that the cheque must be presumed to have been given with the implied authority to fill up the relevant details.
10. It is pertinent to note that the said decision cannot be applied to the facts of the case, since neither the accused, nor the complainant has a case that a blank cheque was handed over, with implied authority to fill up the relevant details. If neither of the parties has any such contentions on facts, the court cannot by itself infer any fact, for the purpose of a conviction. There cannot be an inference that there was implied authority to fill up cheque, in the absence of raising any such contention. Looking at the case from any angle, I find that
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the order is only sustainable and it does not warrant any interference. Hence, I am not inclined to grant leave.
This petition is dismissed.
**K.HEMA, JUDGE.**
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