R. Uthaman Siju Bhavan v. K.P. Rajendran Kacheri Vadakkethil Veedu, Naduvile Muri, Padannilam, Nooranad and State of Kerala

**CRL.APPEAL No.1660 of 2005 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **CRL.A.No.1660 OF 2005** **AGAINST THE JUDGMENT DATED 3.2.2005 IN C.C.NO.851 OF 2000 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA.** ## **APPELLANT/COMPLAINANT:** **R.UTHAMAN SIJU BHAVAN, PALAMELMURI, PADANILAM, NOORANAD REPRESENTED, BY POWER OF ATTORNEY HOLDER R. KUTTAPPAN,, ASHA BHAVAN, NADUVILE MURI,, PADANILAM, NOORANAD.** ## **BY ADV. SRI.RINNY STEPHEN** ## **RESPONDENTS/ACCUSED:** **1 K.P.RAJENDRAN KACHERI VADAKKETHIL VEEDU, NADUVILE MURI,, PADANILAM, NOORANAD VILLAGE.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1660 of 2005 2** ## **JUDGMENT** ## **Dated this the 13th day of November 2020** ... The appellant is the complainant in C.C.No.851 of 2000 on the file of the Judicial First Class Magistrate Court, Mavelikara. 2. The above case is filed by the appellant against the 1[st] respondent herein alleging offences punishable under Section 138 of the Negotiable Instruments Act. (Hereinafter the parties are mentioned according to their rank in the trial court). 3. The case of the complainant is that the accused borrowed a sum of Rs.2 lakhs from the complainant promising to repay the same in three instalments. Money was given on 20.8.1998. Towards the discharge of the amount, cheque bearing No.MSD 413472 dated 30.11.2009 for Rs.1 lakh drawn on South Indian Bank Limited, Pandalam ## **CRL.APPEAL No.1660 of 2005 3** branch, Cheque No.90/SA6/0456774 dated 25.2.2000 for Rs.50,000/- drawn on Indian Overseas Bank, Kudassanadu branch and Cheque No. NSM No.282979 dated 6.3.2000 for Rs.50,000/- drawn on South Indian Bank, Pandalam branch were issued to the complainant by the accused saying that the money will be obtained on presentation of the cheques. The cheques were sent for collection through State Bank of Travancore, Nooranadu branch. But the cheques were returned dishonoured with the memo dated 28.3.2000 with the endorsement ‘funds insufficient’. A lawyer notice was issued by the complainant to the accused intimating him about the dishonour of the cheques and demanding the money within 15 days of the receipt of notice. The notice was returned unclaimed. The accused has not returned the amount of Rs.2 lakhs to the complainant. Hence, the complaint was filed. 4. The accused appeared and the complainant adduced evidence. One witness was examined on the ## **CRL.APPEAL No.1660 of 2005 4** side of the complainant. Exhibits P1 to P16 were marked on the side of the complainant. Two witnesses were examined on the side of the defence as DW1 and DW2. Exhibits D1 to D16 are the documents marked on the side of the defence. 5. After going through the evidence and documents, the trial court found that, the accused is not guilty under Section 138 of the Negotiable Instruments Act. Accordingly, the accused was acquitted under Section 255(1) Cr.P.C. 6. Aggrieved by the acquittal order, this Crl.Appeal is filed. 7. Heard the learned counsel for the complainant and the learned counsel for the accused. I heard the learned public prosecutor also. 8. The learned counsel for the complainant submitted that, the lower court acquitted the accused mainly on three reasons. The first reason ## **CRL.APPEAL No.1660 of 2005 5** is that there are two notices issued by the complainant and therefore the prosecution is not maintainable. The counsel relied the judgment of the Hon’ble Apex Court in MSR Leathers v. S.Palaniappan and Another [2013 KHC 4721]. The counsel submitted that the prosecution based on second or successive dishonour of cheque is also permissible so long as it satisfies the requirements stipulated under the proviso to Section 138 of the Negotiable Instruments Act. The counsel submitted that, second ground on which the learned Magistrate acquitted the accused is that, the statutory notice issued by the complainant is returned with an endorsement ‘unclaimed’ The lower court found that, the complainant has not proved that the notice is issued in the correct address and therefore the accused is entitled an order of acquittal. The counsel relied the judgment of the Hon’ble Apex Court in C.C. Alavi Haji v. Palapetty Muhammed ## **CRL.APPEAL No.1660 of 2005 6** and Another [2007(2) KHC 932] in which it is stated that there is a presumption available under Section 27 of the General Clauses Act in such situation and it is not necessary to aver in the complaint that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. As far as the third ground for acquittal is concerned, the trial court acquitted the accused because PW1 deposed that the three cheques dated 30.11.1999, 25.2.2000 and 6.3.2000 were given together by the accused to the complainant on 20.8.1998 whereas as per the evidence of DW1, the Manager, it is proved that Ext.P4 cheque and cheque book were issued from the bank only in 1999. The counsel submitted that this is a mistake committed by the complainant while giving evidence. In the complaint, it is specifically stated about the issuance of the cheques. The counsel submitted that, an error committed by the complainant is **CRL.APPEAL No.1660 of 2005 7** used by the lower court to acquit the accused especially when there is a clear averment in the complaint about the issuance of cheques. 9. The learned counsel for the accused submitted that, this is a case in which the accused proved that one of the cheques which is alleged to be issued in 1998 was actually handed over to the accused from the bank only in 1999. That shows the falsity of the case of the complainant. The counsel submitted that, that will probabilise the defence case and the accused rebutted the presumption. The counsel submitted that, the trial court is perfectly justified in acquitting the accused on that ground itself. The counsel submitted that, once the notice is returned with an endorsement ‘unclaimed’, it is the duty of the complainant to prove that the accused was evading notice and no evidence is adduced by the complainant to prove the same and therefore, the trial court is justified in ## **CRL.APPEAL No.1660 of 2005 8** acquitting the accused on that ground also. 10. The points for consideration in this appeal is whether the acquittal order passed by the lower court as per judgment dated 03.02.2005 of C.C. No. 851/2000 on the file of Judicial First Class Magistrate, Mavelikkara is sustainable or not. 11. As submitted by the learned counsel for the complainant, there are mainly three grounds for acquitting the accused. But I can not agree with the lower court, as far as the two grounds mentioned in the impugned judgment for acquitting the accused. According to the lower court, there is two notice issued by the complainant and therefore the complaint is not maintainable. 12. Now it is settled by the judgment of the Apex Court in _**MSR Leathers’case (supra)**_ that prosecution based on second or successive dishonor of cheque is also permissible so long as it satisfies the requirements stipulated under **CRL.APPEAL No.1660 of 2005 9** the proviso to Section 138 of Negotiable Instruments Act. Similarly another ground for acquittal by the lower court is that, the complainant has not proved to the effect that, the accused was evading the notice, even though the notice was returned with an endorsement “unclaimed”. I can not accept the above findings of the trial court in the light of the judgment of the Apex Court _**C.C. Alavi Haj’s case (supra)**_ . 13. As far as the 3[rd] point is concerned the finding of the trial court is in page No.9 of the impugned judgment, which is extracted hereunder: _“In order to prove this contention of the accused, the accused has produced Ext.D1 to D16. The specific allegation of the complainant is that 3 cheques dated 30.11.99, 25.2.2000 and 6.3.2000 were given together by the accused on 20.08.98 . DW1 the manager of South Indian Bank Pandalam branch had stated before court that cheque leaves bearing numbers from 282971 to 282980 were issued in the account of the accused during August 1999 and the amount_ ## **CRL.APPEAL No.1660 of 2005 10** _involved in cheque number 282978 was collected by the drawee on 18.2.2000, and the cheque bearing no. 413472 was dishonoured on 15.12.89. Ext.P4 is a cheque for Rs. 50,000/- dated 06.03.2000 and its number is NSM No. 282979. As per the evidence of DW1, the bank manager, this cheque was issued during August 1999 to the accused. If this cheque was given from the bank on 11.8.99 as is seen from Ext.D4, the allegation of the complainant that the 3 cheques were given on 20.08.98 cannot be true. Vide Ext. D4, the previous cheque leaf bearing no. 282978 for Rs. 50,000/- is seen encashed by R.Uthaman (Complainant) on 18.2.2000. The last cheque leaf of this series is 282980. It is seen encashed on 19.01.2000 by KSEB. So it can never be believed that Ext. P4 bearing no. 282979 was given on 20.08.1998.”_ 14. I perused the evidence of PW1, who is the power of attorney holder. The relevant portion of the evidence of the power of attorney holder is extracted hereunder; “ ....................... അനനന്ാതത്തില്‍ 3 ചചെക്ുള്‍ എന്നു കത്തിടത്തി എന്നു പറഞത്തിടത്തില് ല്ലന്യാ (Q) 20.08.1998 നു കത്തിടത്തി എന്നു പറഞത്തിട്ടുണണ. **CRL.APPEAL No.1660 of 2005 11** (Ans.) 3 ചചെക്ുളളും // കകവശളും ഉള്ളലപന്യാഴന്യാലണന്യാ Ext.P3 വവീണളും present ചചെയ് ണ. (Q) അതു ലനരലത ചകന്യാടുതതന്യാണണ. (Ans.) Ext.P2 ഏചതങത്തിലളും transaction-ല്‍ അവര്‍ തമത്തില്‍ കകമന്യാറത്തിയത്തിട്ടുണന്യാവളും, അങത്തിചന അതു പ്രതത്തിയുചടെ കയത്തില്‍ വന്നതന്ാത്തിരത്തിക്കുളും. അതുള്‍ചപചടെ 20.08.98 ല്‍ വന്യാദത്തിക്കു നല്‍കത്തി.” 15. DW1 is the manager of South Indian Bank, Pandalam Branch in his evidence. He clearly stated that, Ext.P4 cheque was issued by the bank to the accused only on 15.12.1999. In the light of the above oral evidence of PW1, which contradict to the main case of the complainant and I think the trial court is justified in acquitting the accused. The complainant had ample opportunity to explain the same, if the above averment is not correct. The complainant is getting an opportunity for explaining the same at the time of re-examination. There is no re-examination on this point. More over, after the defence examined DW1, who is the bank manager, the complainant can file even an application under Section 311 Cr.P.C. to re-examine him to correct the above mistake if it ## **CRL.APPEAL No.1660 of 2005 12** is really a mistake. No attempt is made by the complainant to correct the same. In such circumstances, when this Court while considering an appeal against the acquittal, it can not be accepted that, the averment of the complaint is correct and the oral evidence is not correct. I see no reason to interfere with the acquittal order passed by the trial court in this case. Therefore, this criminal appeal is dismissed confirming the judgment dated 03.02.2005 in C.C.No.851/2000 on the files of the Judicial First Class Magistrate Court, Mavelikara. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**