Kerala High Court
Josco Agencies vs K.P. Shukkoor on 2 June, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939
CRL.A.No. 1055 of 2009 ( )
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IN Crl.L.P. 368/2009 of HIGH COURT OF KERALA DATED 02-06-2009
IN CRA 623/2007 of ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE
DATED 20-02-2009
APPELLANT(S)/RESPONDENT:
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JOSCO AGENCIES,
8/50 MOONALINGAL
CALICUT,
REPRESENTED BY ITS MANAGING PARTNER,,
SRI. TONY JOSEPH, S/O. LATE P.J. JOSEPH.
BY ADV. SRI.SUNNY MATHEW
RESPONDENT(S)/APPELLANT AND STATE:
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1. K.P. SHUKKOOR, S/O. MOIDU,
AGED 50 YEARS,
MANAGING PARTNER,
M/S K.P. AGENCIES,
NEW BUS STAND,
THALASSERY,, KANNUR DISTRICT.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
R1 BY ADV. SRI.T.M.ABDUL LATHEEF
R2 BY PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ds
P.UBAID, J.
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Crl.A.No. 1055 of 2009
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Dated this the 25th day of July, 2017
J U D G M E N T
The appellant herein is the complainant in C.C. No. 424 of 2006 of the Judicial First Class Magistrate Court, Marad Cases, Kozhikode, and the first respondent herein is the accused in the said case. The complainant brought the prosecution under Section 138 of the Negotiable Instruments Act on the allegation that a cheque for 1,02,949/- issued by the accused in discharge of the price of the goods purchased by him from the complainant was bounced due to insufficiency of funds, and in spite of notice, he did not make payment of the cheque amount. The complainant is a wholesale distributor of footwear items, represented by the power of attorney holder, and the accused is said to be the Managing Partner of a firm by name, 'Keypees Agencies'. The amount covered by the cheque is said to be the price of the footwear items allegedly purchased by the accused for Crl.A.No. 1055 of 2009 -2- his partnership firm, from the complainant.
2. The accused appeared before the trial court, and pleaded not guilty when the particulars of the offence were read over and explained to him. The complainant examined PW1 and proved Exts. P1 to P8 documents.
3. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and maintained a defence that he had no transaction with the complainant, and that he had not issued any cheque in discharge of any liability to the complainant. The accused did not adduce any evidence of his own in defence.
4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for three months, and was also directed to pay a compensation of 1,02,949/- to the complainant under Section 357(3) Cr.P.C. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Kozhikode, by way of Crl.A. Crl.A.No. 1055 of 2009 -3- No. 623 of 2007. In appeal, the learned Additional Sessions Judge (Adhoc-I), Kozhikode, found that the complainant has failed to prove the execution of the cheque in question, and that there is no evidence to prove the transaction alleged in the complaint. On such findings, the learned Additional Sessions Judge found the accused not guilty, and accordingly, he was acquitted in appeal by judgment dated 20.02.2009. Aggrieved by the said judgment of acquittal in appeal, the complainant brought this appeal with the leave of this Court under Section 378(4) Cr.P.C.
5. The definite case of the complainant is that the Ext.P3 cheque in question was issued by the accused in discharge of the price of the footwear items purchased by the accused from the complainant firm. The accused has stoutly denied the allegations in the complaint. His definite case is that he had no transactions with the complainant, and that he had not executed any cheque in favour of the complainant. Of course, it is true that reply was not sent by Crl.A.No. 1055 of 2009 -4- the accused to the statutory notice. What the law requires is that the complainant shall cause a statutory notice making demand. Whether the accused replies or not, there is an initial burden on the part of the complainant to prove due execution of the cheque, and also the fact that the cheque is supported by consideration. To prove that the cheque is supported by consideration in a case like this, the complainant will have to prove the transaction wherein, debt was allegedly incurred by the accused. So, in this case, the complainant is expected to prove the business transaction wherein, footwear items were purchased by the accused, and he will also have to prove due and voluntary execution of the cheque in question in discharge of the said liability.
6. PW1 examined on the side of the complainant claims to be the Assistant Sales Manager of the complainant firm. He also claims to be the power of attorney holder of the firm. In evidence, Ext.P1 copy of the power of attorney was marked, but PW1 stated that he has not produced any Crl.A.No. 1055 of 2009 -5- authority to show that he is competent to give evidence on behalf of the complainant. In examination in chief, he stated about the business transactions between the complainant and the accused, and he also stated that the cheque in question was issued by the accused in discharge of the price of the goods purchased by him. But, when cross examined, PW1 stated that he has no direct knowledge about the transactions, or about the execution of the cheque in question. He is just a power of attorney holder who does not know anything about the business transactions between the complainant and the accused. He frankly conceded that he had not witnessed any transaction in between the two, and that he had not seen the accused purchasing anything from the complainant. He does not know when goods were purchased by the accused from the complainant, he does not know when or where the cheque in question was executed, and he does not know in discharge of what liability the cheque in question was executed by the Crl.A.No. 1055 of 2009 -6- accused. In short, the witness examined on the side of the complainant as PW1 does not know anything about the transaction alleged in the complaint, or about the details of the cheque in question. Practically, the transaction wherein the accused allegedly incurred liability stands not proved. Due and voluntary execution of the cheque in question also stands not proved.
7. The complainant can avail the benefit of the presumption under Sections 118 and 113 of the Negotiable Instruments Act only when the complainant has proved the essential facts for availing such a presumption. What the complainant has to prove in a proceeding under Section 138 NI Act is not just a liability. It must be a legally enforcible liability. The complainant does not know when goods were purchased by the accused, what goods were purchased by the him, for what amount goods were purchased by the accused, and he does not know anything about the cheque in question. Thus, the evidence given by PW1 is valueless. Crl.A.No. 1055 of 2009 -7- I find that the judgment of conviction made by the trial court was rightly reversed by the appellate court, and that the accused was rightly found not guilty by the appellate court.
In the result, the appeal is dismissed.
Sd/-
P.UBAID JUDGE ds 27.07.2017 //True copy// P.A. to Judge