Kerala High Court
Central Excise Employees Co-Operative ... vs State Of Kerala on 7 December, 2015
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938
CRL.A.No. 142 of 2016
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ST 1383/2009 CHIEF JUDICIAL MAGISTRATE'S COURT ERNAKULAM
DATED 07-12-2015
Crl.L.P. 13/2016 DATED 14-01-2016
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APPELLANT/COMPLAINANT:
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CENTRAL EXCISE EMPLOYEES CO-OPERATIVE CREDIT SOCIETY
LIMITED, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD,
KOCHI 18, REPRESENTED BY ITS SECRETARY MR.RADHAKRISHNAN.
BY ADVS.SMT.M.VANAJA
SMT.K.B.SUJATHA
RESPONDENT(S)/STATE AND ACCUSED:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OR KERALA, ERNAKULAM.
2. K.MOHANAN
THATTUPURAKKAL HOUSE,
KARUVATTA POST, ALAPPUZHA DISTRICT.
R1 BY PUBLIC PROSECUTOR
R2 BY ADVS. SRI.DIPU.R
SMT.P.A.PRIYA
SMT.V.DEEPA
SRI.M.LIJU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 29-08-2016, THE COURT ON 09-09-2016 DELIVERED THE
FOLLOWING:
K.V.
SUNIL THOMAS, J.
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Crl.A.No.142 of 2016
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Dated this the 9th day of September, 2016
JUDGMENT
The appellant society challenges the judgment of the trial court in ST No.1383/2009 of the Chief Judicial Magistrate Court, Ernakulam in a proceeding under Section 138 of the Negotiable Instruments Act.
2. The society, represented by the Secretary, filed a complaint stating that the accused had availed a loan from the society and that, towards the discharge of the outstanding liability, a cheque for a sum of Rs.99,224/- was issued. The cheque, on presentation, was returned dishonoured. A statutory notice was issued and since it was not replied, the complaint was laid. The accused appeared and contested the proceedings. The parties went for trial. After evaluation of the available materials, the court below held that the complainant failed to prove the case beyond doubt and hence, acquitted the accused. This is challenged in this appeal.
3. Heard both sides and examined the records.
4. The defence set up by the accused was that of a total denial. According to him, he neither had a transaction with Crl.A.No.142/2016 2 the society nor had issued Ext.P1 Cheque. Necessarily, the burden is heavily on the complainant to prove its case. To substantiate the case, the complainant relied on the oral testimony of PW1, the secretary of the society. He deposed that he was authorized to depose on behalf of the society by resolution No.117/4-09. He deposed in accordance with the existing liability and the due execution of the cheque. The court below evaluated the available inputs, arrived at a few conclusions and acquitted the accused.
5. One of the ground relied on by the court below was that the accused had contended that he had a cheque which was lost and it has been made use of by the complainant. The court below held that the available signature in Ext.P6 acknowledgment card was substantially different from that of the disputed cheque. The court held that no sample signature had been brought from the custody of the drawee bank or from the custody of the complainant society itself. It is pertinent to note that PW1 in his evidence had stated that the cheque was executed by the accused. Accused, though denied the execution of the cheque, did not have a case that it was not drawn on his account. He did not have a case that the signature in the cheque was different from that of his Crl.A.No.142/2016 3 admitted signature. In fact, the lawyer notice, on the strength of dishonoured cheque, was received by the accused, but was not replied. Further Ext.P8 Ledger abstract indicated that the accused had some transaction with the society. There was no contra evidence to prove that the cheque was not executed by him. In the light of the above materials, the court below was not justified in believing the version of the accused that the signature was not that of his and to hold that it showed marked difference with the signature on acknowledgment card which was a subsequent document executed by the accused.
6. The court below further held that the authority of PW1 to represent the society was not proved with the evidence tendered. However, PW1 had specifically stated that he was the Secretary of the society and was authorized to represent it by a resolution No.117/4-09. The court below held that the above resolution was not produced before the court below.
7. Learned counsel for the petitioner had relied on Annexure A1, which is a copy of the resolution No.117/4-09 dated 18/4/2009. Annexure A1 specifically authorized PW1 to initiate criminal proceedings. In the light of Annexure A1 resolution, I find no reason for the court below to take a view Crl.A.No.142/2016 4 that there was nothing to show that PW1 was competent to represent the society. Even otherwise under the Co-operative Societies Act, society is represented by its member.
8. Having regard to the above, I feel that the findings of the court below on this point are not legally sustainable. Necessarily, the conclusion of the court below does not appear to be legally sustainable. I feel that one opportunity should be given to the court below to consider the entire evidence afresh in the light of the above findings and to arrive at its own conclusion, so that it can be challenged in appeal by the aggrieved person on merits.
In the result, the appeal is allowed. The impugned judgment is set aside and the matter is remitted to the court below for fresh consideration. Both sides shall appear before the court below on 28/10/2016. The court below shall give a reasonable opportunity to both sides to argue the matter on merits and thereafter pass appropriate orders thereon untramelled by any observations made above.
Sd/-
SUNIL THOMAS
Judge
dpk /true copy/ PS to Judge.
Crl.A.No.142/2016 5
JUDGMENT