## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
## **THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN**
**THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929**
## **CRL.A.No.792 of 2001 (C)**
**------------------------------**
## **CC.8/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE.**
**....................**
## **APPELLANT/COMPLAINANT:**
**---------------------------------**
**M/S GLOBAL TRADERS, BEYPORE NORTH P.O., CALICUT - 15, REP. BY ITS POWER OF ATTORNEY HOLDER, K. PRADEEP KUMAR**
## **BY ADV. SRI.DEVAN RAMACHANDRAN**
## **RESPONDENTS/ACCUSED:**
**------------------------------**
**1. MR.RAJEENDRAN, KSEB, POOKKAD, CALICUT.**
## **2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## K.P.BALACHANDRAN, J.
-----------------------------------------------Crl. Appeal No.792 of 2001
-----------------------------------------------Dated this the 14[th] day of February, 2008
## **JUDGMENT**
The appellant is the complainant in C.C.8/01 on the file of the Judicial First Class Magistrate's Court-II (Mobile), Kozhikode. He assails in this appeal the acquittal of the first respondent of an offence punishable under Section 138 of the N.I. Act under Section 255(1) of the Cr.P.C.
2. The allegation in the complaint filed in the court below is that the appellant is a partnership firm doing business in lubricating oil etc. at Naduvattam amsom, Beypore desam in Kozhikode taluk and is represented by its power of attorney holder K.Pradeep Kumar; that the accused is employed in K.S.E.B at, Pookkad in Calicut district; that he used to purchase lubricating oil from the appellant on credit and in discharge of the amount due to the
Crl. Appeal No.792 of 2001
-2-
appellant on account of the purchase of the oil thus made the first respondent issued Ext.P2 cheque for an amount of Rs.15,948/drawn on his account at the Koyilandy branch of the South Malabar Gramin Bank; that on forwarding of the cheque for collection through the State Bank of Mysore, G.H. Road, Calicut, it was returned dishonoured for reason of “insufficient funds” under Ext.P3 memo dt.01/03/99; that the cheque with Ext.P3 memo was forwarded to the appellant by his bankers under Ext.P4 memorandum dt.03/03/99; that thereupon, Ext.P6 notice was caused to be issued through lawyer informing the first respondent of the dishonour of the cheque and demanding payment of the amount covered by the cheque, but the same was returned undelivered and the first respondent has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and
Crl. Appeal No.792 of 2001
-3-
has thereby committed an offence punishable under Section 138 of the N.I. Act.
3. The first respondent entered appearance in the court below pursuant to receipt of summons. Thereupon, the court below served the first respondent with all relevant records in the case and questioned him reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below.
4. On the side of the complainant PW1 is examined and Exts.P1 to P7 are got marked. On the complainant closing his evidence the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, the account in which Ext.P2 cheque is drawn is one maintained
-4-
Crl. Appeal No.792 of 2001
by him, but he is a lineman working in major Section of K.S.E.B at Nadapuram that he has no connection with Vyasa Traders or with oil business; that Manukumar of Thottuvalappil, Koyilandy is his friend and that Manukumar is conducting “Vyasa Traders”; that to enable him to conduct oil business a cheque of an employee was stated to be necessary and accordingly, on his demand, he gave a cheque and that on being asked about this case the said Manukumar informed him that the case is filed on account of some difference of opinion and that all transactions with the appellant/ firm is already closed. On the defence side the said Manukumar is examined as DW1 and Exts.D1 and D2 are got marked.
5. The court below on a consideration of the evidence in the case came to the conclusion that the appellant has no idea even as to the identity of the person who has
Crl. Appeal No.792 of 2001 -5-
issued the cheque and that the cheque in the circumstances, cannot be held to be one issued in discharge of any debt due from the first respondent to the appellant and consequently, acquitted the first respondent of offence under Section 138 of the N.I. Act under Section 255(1) of the Cr.P.C. Hence, this appeal by the aggrieved appellant.
6. Service to the first respondent was being effected by publication in Kerala Kaumudi daily. He did not enter appearance.
7. It is vehemently contended before me by the learned counsel for the appellant that Ext.P2 cheque was being issued in Ext.P7 account maintained by the first respondent; that Ext.P6 notice that was being issued to the first respondent was being returned unserved as the first respondent was absent in the address and that the court below in the circumstances, was not justified in acquitting
Crl. Appeal No.792 of 2001
-6-
the first respondent of offence punishable under Section 138 of the N.I. Act.
8. PW1 is the power of attorney holder of the appellant/firm. The appellant/firm is stated to be engaged in sale of engine lubricating oil. According to PW1, the first respondent used to purchase oil from the appellant/firm and on 24/02/99, he issued Ext.P2 cheque drawn on his account at the Koyilandy branch of the Malabar Gramin Bank; and that notice issued to him consequent on dishonour of Ext.P2 cheque was being returned unclaimed. In fact, the cheque was being returned undelivered and not unclaimed. In cross examination he has stated that the Managing Partner of the appellant/firm is one A.V.S.Menon; that he joined as a partner only in 1996 that he is not aware as to what is the job of the first respondent but he knows the address of the shop of the first respondent
Crl. Appeal No.792 of 2001
-7-
that the said address is “Vyasa Traders, Koyilandy”. But all the same, he admits that he has not understood as to whose concern is it that is being run under the name and style “Vyasa Traders” and however, that dishonour of the cheque is not informed in writing to the said address. He further states that even before his joining the firm the firm was having transaction with the first respondent; that he was giving advice to file the complaint after perusing the records and that in the records, the only address of the first respondent seen is as “Vyasa Traders, Koyilandy”. He has further stated that he does not know Manukumar of Thottuvalappil. He has also deposed that when he went over to the concern Vyasa Traders that had been closed and he did not see even a board there and that he understood of the existence of Vyasa Traders once upon a time only on hearsay from those in
-8-
Crl. Appeal No.792 of 2001
the locality. He has also stated further in cross examination that the oil purchased by the first respondent is oil that is used in boat but that he does not know whether the first respondent is having any boat. When he was asked about the address shown in Ext.P6 notice, PW1 has stated that the said address was being given to him by a person who was having connections with the first respondent but that he does not know the address of that person. PW1 has not disclosed even the name of that person who gave him the address of the first respondent. However, he has denied the suggestion in cross examination that Ext.P2 cheque is one among the two cheques given by way of security when Manukumar of Thottuvalappil began purchasing oil from the appellant/firm on credit. The accused has stated when questioned that he had no connection at all with Vyasa Traders or oil
Crl. Appeal No.792 of 2001
-9-
business; that he is engaged as lineman in K.S.E.B, Electrical Major Section at Nadapuram that Manukumar of Thottuvalappil at Koyilandy is his friend and that Manukumar is conducting business under the name and style “Vyasa Traders”; and that cheque was being issued to him when he stated that he is in need of a cheque of an employee for conducting oil business; and that when he was asked about this case, he said that the transaction with the appellant/firm was closed and there was some difference of opinion between him and the appellant. The said Manukumar is examined as DW1. He has deposed that he is having
residence at Thottuvalappil at Koyilandy; that he was conducting oil trade under the name and style “Vyasa Traders”; that Ext.D1 is receipt issued by the Koyilandy Municipality for payment by him of profession tax for conducting trade in oil; that he was having
Crl. Appeal No.792 of 2001 -10-
credit transaction with the appellant/firm that he used to make payments in instalments after supply of oil while at the same time giving a blank cheque at the time of delivery of oil; that the cheque given by him is one obtained from the first respondent/ Rajeendran as he had no account; and further that cheque of a Government employee was demanded by the appellant and that Ext.P2 was the blank cheque that was given by him to the appellant which did bear only signature then. The evidence discussed above shows that the appellant/firm or its partners had absolutely, no acquaintance at all with the first respondent; that oil was being supplied certainly not to the first respondent who is a lineman in the K.S.E.B; that as evidenced by the deposition of DW1 and Ext.D1, the sale of oil could have been made by the appellant to Manukumar who was conducting trade under the name and style
Crl. Appeal No.792 of 2001 -11-
“Vyasa Traders”; and that Ext.P2 cheque is one made up on a blank signed cheque issued by the first respondent to the said Manukumar which was handed over by way of security to the appellant at the time of delivery of oil for business at his concern “Vyasa Traders”. The appellant has miserably failed to establish that any debt was due from the first respondent to the appellant/firm and that it was in discharge of that debt that Ext.P2 cheque was issued. As held by the Apex Court in _Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC)_ the presumption under Section 139 of the N.I. Act is not regarding existence of any debt or existence of any legally recoverable debt but only that cheque if proved to have been issued will be presumed that it is issued in discharge of any debt or other liability. In the instant case, the first respondent is not shown to have any commercial transaction
Crl. Appeal No.792 of 2001 -12-
with the first appellant and the first appellant is not shown to have any debt to be discharged to the appellant/firm by issuance of Ext.P2 cheque. In the circumstances, the court below was rightly acquitting the first respondent of offence under Section 138 of the N.I. Act. This appeal is devoid of any merit and deserves only to be dismissed.
9. In the result, confirming the order of acquittal passed by the court below, I dismiss this Criminal Appeal.
K.P.BALACHANDRAN, JUDGE
kns/-
