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2018 DIGILAW 7 (KER)

K. ASHOK NAIR v. C. V. VICHITHRAN

2018-01-03

K.P.JYOTHINDRANATH

body2018
JUDGMENT : K.P. JYOTHINDRANATH, J. Crl.A. No. 2084 of 2005. 1. This appeal is filed by the complainant in ST 377/2001 on the files of the Judicial First Class Magistrate Court, Ottapalam. The original case was filed under section 138 of the Negotiable Instruments Act. Appeal is against acquittal. 2. The relevant facts necessary for consideration of this appeal is as follows: The complainant is the managing partner of M/s. Lakshmi Polymers and Lakshmi Marketing, Ottapalam. The respondent/accused was a commission agent of the said firm. It is alleged that the respondent/accused owed Rs. 47,297/- and in discharge of the said liability, issued a cheque drawn on Canara Bank, Shornur branch. When it was dishonoured, statutory notice was sent, no payment made, hence the complaint. Prosecution examined PWs1 and 2 and Exts. P1 to P8 were marked. DW1 examined on the side of the defence. Exts.D1 to D6 series were also marked. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that the court below acquitted the accused on a perverse appreciation of the evidence. It is the submission that the court below failed to draw a presumption under section 139 of the N.I. Act to fix the liability. 4. I heard the learned counsel for the 1st respondent who submitted before this court that admittedly the respondent/accused is a commission agent. The positive stand of the accused before the court below was that there was amount due towards travelling allowance and commission to the respondent and to escape from the said liability, making use of the documents collected at the time of his appointment, a false case has been foisted. 5. After hearing the learned counsel, this court perused the documents and case file. It can be seen that the case of the prosecution is that payment of the articles supplied by the complainant, canvassed by the accused, were to be collected by the accused either by demand draft or by cheque. In this regard an agreement was entered into in between the appellant/complainant and respondent/accused which was marked before the trial court as Ext.P7. As per the evidence, it can be seen that originally there was an outstanding of Rs. 71,466/- and the positive finding of the court below is that out of the said amount a sum of Rs. In this regard an agreement was entered into in between the appellant/complainant and respondent/accused which was marked before the trial court as Ext.P7. As per the evidence, it can be seen that originally there was an outstanding of Rs. 71,466/- and the positive finding of the court below is that out of the said amount a sum of Rs. 21,253/- was subsequently collected by the commission agent appointed after this respondent/accused left the firm. Thus what comes out is that the cheque was issued towards the amount due from the parties who received the materials through the commission agent. There is no case for the complainant that actually the said amount was collected and retained by the commission agent. This aspect is evident from the 2nd paragraph of the judgment, which states as follows: "According to the complainant the payment of the articles supplied by the complainant, canvassed by the accused were to be collected by the accused either by demand draft or by cheque and liability for payment of the same is fixed on the accused as per an agreement." 6. Thus what comes out is that supply of products of the complainant's firm to the parties and the liability to collect the amount lies upon the commission agent. Originally it was fixed as Rs. 71,466/- and after further collection, it was reduced to Rs. 47,297/-. There, actually no material produced before the court to show that the said amount was actually collected by the respondent/accused herein and retained and in discharge of the said liability cheque was issued. This is evident from the affidavit filed by PW1 which states as follows: ;fn bZdkbZ ij 'kkldh;@v)Z'kkldh; foHkkx@LFkkuh; fudk;@forh; laLFkk@vFkok vU; dksbZ nsunkjh fudyrh gS] rks mlds Hkqxrku dh ftEesnkjh iwoZ bdkbZ eSllZ fuch LVhYl ds lapkyd dh gksxhA uohu bdkbZ eSllZ ekgs'ojh LVhYl }kjk eSllZ fuch LVhYl dh lEifr iatkc us'kuy cSd] usg: uxj fHkykbZ] ftyk nqxZ] }kjk ljQs'kh ,DV ds rgr _.k owlyh djus gsrq uhykeh ds ek/;e ls dz; dh x;h gSA 7. Thus, it is evident that there is nothing to show that the said amount was actually received by the respondent/accused and there is a legal liability to pay the said amount. Under such circumstances, there is nothing to interfere with the acquittal order passed by the court below. Hence appeal is dismissed.