P.RAHIM Vs. A.R.M.YAKUB

JUDGEMENT

(1.) The appeals are filed questioning the legality and correctness of the common judgment passed by the Court of Session, Kozhikode Division (Appellate Court) in Criminal Appeal Nos.622, 623, 624, 636, 637 and 638 of 2009. The appellant was the first respondent, and the first respondent was the appellant before the Appellate Court. As the above appeals were disposed of by a common judgment, they were consolidated and jointly heard and are being disposed of by this common judgment. For convenience, the parties are referred to as per the status before the Trial Court. Relevant Factual Matrix

(2.) The complainant had filed C.C Nos.421, 422 and 423 of 2003 before the Judicial Magistrate of the First Class - V, Kozhikode (Trial Court) against the accused (first accused firm and its four partners), alleging them to have committed the offence under Sec.138 of the Negotiable Instruments Act (in short, 'N.I Act'). The common case of the complainant in the three complaints was that he was doing business in sale of fish and the first accused was doing business in fish export. The Managing Partner of the firm, the third accused, had purchased fish from the complainant on credit. In the discharge of the legally enforceable debt, the third accused had issued Exts.P1 to P3 cheques in favour of the complainant. The accused Nos.2, 4 and 5 are the other partners of the firm, who also had control and responsibility in managing the affairs of the firm. The cheques, on presentation to the Bank for collection, got dishonoured due to insufficient funds in the bank account of the first accused. The complainant issued Exts.P11 to P13 statutory lawyer notices to the accused. Although the notices were served on the accused, only the fifth accused sent Ext.P16 series reply notices denying the allegations in the lawyer notices. As the accused failed to pay the demanded amount, they committed the offence under Sec.138 of the N. I Act. Accordingly, the complaints were filed.

(3.) During the pendency of the proceedings, the fourth accused died. Since the third accused had absconded, the cases against him were split up. The accused one, two and five pleaded not guilty to the substance of the accusations read over to them. In the trial, the complainant and the Bank Manager were examined as PWs.1 and 2 and Exts.P1 to P24 were marked in evidence. The fifth accused was examined as DW1, and Exts.D1 to D5 were marked through him. Trial Court judgment