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1999 DIGILAW 106 (KER)

Augusty v. Rajan

1999-02-23

K.A.MOHAMMED SHAFI

body1999
Judgment :- K.A. Mohamed Shaft, J. The complainant in C. C. No. 245/92 on the file of Judicial First Class Magistrate's Court-I, Thamarassery is the appellant. 2. The complaint was filed against the respondent alleging offence punishable under S.138 of the Negotiable Instruments Act. According to the appellant, the respondent borrowed Rs. 20,000/- from him agreeing to repay the same on 10.8.92 and issued a cheque for that amount drawn on North Malabar Gramin Bank, Pookode Branch. When the cheque was presented for encashment it was bounced for insufficiency of frauds to the credit of the respondent. The respondent did not pay the amount in spite of the registered notice dated 7.9.92 intimating about the dishonour of the cheque and calling upon him to pay the amount, instead he caused to send a reply notice making false allegations. 3. After trial the lower Court by judgment dated 15.10.1994 found that Ext. P1 cheque is not supported by any consideration and therefore the ingredients of the offence punishable under S.138 of the Negotiable Instruments Act are not made out in this case and acquitted the accused. Challenging the judgment of the lower court, the complainant has come up in appeal before this Court. 4. The first ground on which the lower court found against the appellants is that the appellant has not complied with the provisions of S.204(2) of the Crl. P.C. as he has not filed the witness list along with the complaint. It is pertinent to note that S.204(2) of the Crl.P.C. is attracted only at the time of taking cognizance of the offence. Though only one witness is stated in the complaint, the appellant has stated in the complaint that he has got three witnesses to be examined. The proceedings paper maintained by the lower court shows that the appellant had filed witness list citing PWs. 3 and 4 as his witnesses on 4.3.1994 after he was examined as PW.1. Therefore, the finding of the lower Court that the delay in filing the witness list is material in this case is not sustainable. 5. The lower court found that there is contradiction in the evidence of PWs. 1, 2 and 3, the material witnesses examined in this case. The contradiction pointed out is with regard to the presence of witnesses at the time of payment and the place from where it was paid. 5. The lower court found that there is contradiction in the evidence of PWs. 1, 2 and 3, the material witnesses examined in this case. The contradiction pointed out is with regard to the presence of witnesses at the time of payment and the place from where it was paid. I find those contradictions are not material in a case of this nature alleging offence punishable under S.138 of the Negotiable Instruments Act which provides legal presumption in favour of the complainant though re but table. 6. The further ground by which the lower court found against the appellant is that the appellant has not proved that he has got means to pay the advanced amount. He has stated that he advanced the money obtained from his brother-in-law, PW3. In view of the presumptions available under Ss.118(a) and 139 of the Negotiable Instruments Act in favour of the drawee or holder of the cheque, such discrepancies also will not matter much. 7. The failure of the complainant to mention about the place and date of the transaction is not material. It has to be noted that the complaint filed before the court is only intended to set the criminal law in motion and it need not contain all the particulars. Failure to mention the names of PWs. 2 and 3 also as witnesses in the complaint is found to be fatal by the lower court. It is true that the names of PWs. 2 and 3 are not mentioned as witnesses either in the complaint or in examination chief of PW1. But that fact is elicited in cross-examination from PW1. The appellant has also filed witness list citing PWs. 2 and 3 as witnesses and the respondent had an opportunity to cross-examine them. Therefore, failure to mention their names in the complaint is also not fatal in this case. 8. The counsel for the appellant vehemently submitted that considering the evidence adduced by the appellant in this case and the diametrically opposite case put forward by the respondent in Ext. P7 reply notice as well as in the statement under S.313 of the Cr.P.C., this Court should find the respondent guilty and convict him. 8. The counsel for the appellant vehemently submitted that considering the evidence adduced by the appellant in this case and the diametrically opposite case put forward by the respondent in Ext. P7 reply notice as well as in the statement under S.313 of the Cr.P.C., this Court should find the respondent guilty and convict him. But the counsel for the respondent submitted that in view of the fact that the lower court found the respondent not guilty in this case, if this Court finds that the judgment passed by the lower court is not sustainable, the respondent should be given an opportunity to adduce evidence in support of his contentions. Though the counsel for the appellant opposed this request, I find from the facts and circumstances of this case that such an opportunity should be afforded to the respondent to adduce defence evidence. 9. Hence the judgment under appeal is set aside and the matter is remitted to the lower court for fresh disposal in accordance with law after giving the parties an opportunity to adduce evidence. It is made clear that no de novo trial is contemplated in this case. Parties will appear before the lower court on 29.3.1999.