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K.P.HARIDASAN versus E.K.GOPI

High Court of Kerala

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K.P.HARIDASAN v. E.K.GOPI - CRL A No. 1067 of 1998(C) [2006] RD-KL 2644 (6 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1067 of 1998(C)

1. K.P.HARIDASAN
... Petitioner

Vs

1. E.K.GOPI
... Respondent

For Petitioner :SRI.A.K.MADHAVAN UNNI

For Respondent : No Appearance

The Hon'ble MR. Justice J.B.KOSHY

Dated :06/12/2006

O R D E R

J.B. KOSHY, J.

CRL.APPEAL No. 1067 of 1998

Dated this the 8th day of December, 2006

Judgment This is an appeal filed by the complainant against acquittal of the accused. It is the case of the complainant that accused borrowed Rs.30,000/- with a promise to return the same and in consideration of the same, a cheque No.SB spare 93947 dated 21.4.1993 drawn on Manjeri Co-operative Urban Bank Limited was given. An agreement was also executed, but, it was dishonoured for insufficiency of funds. Hence, he filed the complaint. The trial court acquitted the accused on two grounds. First ground was that Ext.P1 cheque is only a withdrawal slip and not a cheque. I have gone through Ext.P1. It has got all the requisites of a cheque. It says that "Pay Haridasan K.P. Rupees Thirty Thousand." It is the usual cheque issued by the above bank and the finding of the magistrate that it is only a withdrawal form and not a cheque is not at all justified. The bank manager was also examined as PW1. Ext.P1 cheque is supported by Ext.P4 agreement. The fact that the cheque was dishonoured for insufficiency of funds is proved by Crl.A.No.1067/98 2 Ext.P2 memo as well as Ext.P3 ledger extract. Ext.P5 is the copy of notice. The court also noticed that even though acknowledgment card was produced, it was not marked. The accused did not come to the box and state that he has not received the notice. The accused did not adduce any evidence. The Magistrate himself found that notice was sent in the correct address. If that be so, there is a presumption also that it is received by the addressee unless contrary is proved. Here, no evidence was adduced to show that notice was not served. In fact, acknowledgment card was produced and what was marked was the notice. Acknowledgment card was annexed to the notice. Therefore, acquittal of the accused is not at all justifiable. Therefore, I set aside the judgment of the court below. In any event, there is no evidence to show that notice was not received by the accused. Despite service of notice, respondent-accused was absent before this court and acknowledgment card is also seen signed by the accused. In the result, acquittal of the accused is set aside. He is convicted for offences punishable under section 138 of the Negotiable Instruments Act. The matter is remanded to the court below for consideration of punishment/sentence. The court below should issue notice to the accused to be present in court on 12.1.2007. The Crl.A.No.1067/98 3 complainant should be present in court on that date. I make it clear that notwithstanding the conviction, parties will be free to settle the matter. Appeal is allowed to the above extent. J.B.KOSHY

JUDGE

vaa

J.B. KOSHY, J.

CRL.APPEAL No.1067/98 Judgment

Dated:8th December, 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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