MALAYALAM AGENCIES Vs. STATE OF KERALA

JUDGEMENT

(1.) THE complainant, a partnership firm is the appellant. The complaint filed by the firm under Sec. 138 of N.I. Act ended in acquittal under Sec. 255(1) of Cr.P.C. The case of the complainant is that to discharge the liability due to the complainant Ext.P1 cheque for Rs. 25,139/ - dated 16.5.2000 was executed by the accused. When it was presented for encashment, it was dishonored on the ground of insufficiency of fund. On receipt of the memo, statutory notice was sent. No reply was sent by the accused. Hence, the complaint was filed.

(2.) THE Power of Attorney Holder of the complainant company was examined as PW1 and Exts.P1 to P6 were marked. Ext.P6 is the copy of power of attorney. When PW1 was in the witness box, the main case advanced by the defence was that the accused was not the proprietor of M/s. Thottappillil Traders and that Ext.P1 cheque was not drawn on the account maintained by the accused and that it was not signed by the accused also. But PW1 asserted that the cheque was signed and the seal was affixed by the accused himself. But that version was not controverted by the defence. The learned Magistrate acquitted the accused holding that the complainant did not prove that Ext.P1 was drawn on an account maintained by the accused. Ext.P2, the dishonour memo shows that Ext.P1 was dishonored only on the ground of insufficiency of fund and not on any other ground. If Ext.P1 was not signed by the account holder then it would have been specifically noted in Ext.P2. That was not done. Therefore, the accused cannot legitimately contend that Ext.P1 was not actually drawn by the accused on an account maintained by him. That apart, when statutory notice was sent no reply was sent by the accused. Ext.P4 is the copy of the notice and Ext.P5 is the postal acknowledgment of the accused.