BALAKRISHNAN, S/O KOCHUNNY, KANDAMPULLY HOUSE, KARIYANNOOR, KANDANASSERY P.O., TALAPPILLY Vs. SHANIBA SNEHAJAN, W/O SNEHAJAN, VALIYAKATH HOUSE, IRINGAPURAM P.O., CHAVAKKAD

JUDGEMENT

(1.) The complainant in C.C.No.23/2016 on the file of the Judicial First Class Magistrate Court-II, Chavakkad, is the appellant herein. The 1st respondent has been indicted for the offence punishable under Section 138 of the N.I. Act in the above said complaint. Ext.P-1 dishonoured cheque dated 30.5.2015 is for Rs. 1 lakh. The trial court as per the impugned judgment dated 16.5.2017 had acquitted the accused mainly on the ground that the appellant/complainant has failed to prove the crucial factum of dishonour of the cheque inasmuch as he had not marked the dishonour memo issued by the drawee bank in evidence. Being aggrieved by the said judgment of acquittal, the appellant had preferred Criminal Leave Petition No.256/2017 seeking Special Leave of this Court under Section 378(4) of the Cr.P.C so as to file Criminal Appeal to impugn the said judgment of acquittal. This Court as per order dated 18.7.2017 had allowed the said plea and had granted Special Leave to the petitioner. It is thereafter that the petitioner has instituted the present appeal so as to impugn the above said judgment of acquittal.

(2.) Heard Sri.P.Ramachandran, learned counsel appearing for the appellant-complainant, Sri.G.Sreekumar (Chelur), learned counsel appearing for the 1st respondent-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

(3.) The brief of the allegations in the complaint is to the effect that the complainant and accused were acquainted with each other and in view of the said circumstances, the accused had requested for a personal loan of Rs. 1 lakh and accordingly on 20.4.2015, the complainant had advanced an amount of Rs. 1 lakh to the accused on the assurance that the amount will be repaid within one month and when the amount was demanded the accused had come over to the residence of the complainant and in discharge of the said liability he had issued Ext.P-1 cheque dated 30.5.2015 for Rs. 1 lakh drawn from the Federal Bank, Chowalloorpadi Branch, in favour of the complainant. The cheque was sent for collection to the complainant's bank (Syndicate Bank, Guruvayoor Branch), and the factum of dishonour by the drawee bank was intimated to the petitioner as per Ext.P-2 cheque return memo dated 2.6.2015 issued by the complainant's collection bank (Syndicate Bank, Guruvayoor), and thereupon the complainant issued Ext.P-3 statutory demand notice dated 9.6.2015 calling upon the accused to pay the amount covered by the cheque within 15 days of receipt of the said notice and that the said notice send by registered post was duly received by the accused as evident from Ext.P-4 postal receipt dated 12.6.2015 and Ext.P-5 postal acknowledgement card dated 16.6.2015. The accused had not responded to the statutory demand notice. Since the amount was not paid, the complainant had instituted the present complaint which led to the conduct of the trial. During the trial, complainant was examined as PW-1 and marked Exts.P-1 to P-5 documents. The defence had not adduced any oral or documentary evidence. The trial court as per the impugned judgment dated 16.5.2017 had acquitted the accused solely on the ground that the complainant has failed to prove the factum of dishonour of the cheque by the drawee bank (Federal Bank, Chowalloorpadi Branch) inasmuch as the complainant had not marked in evidence the dishonour memo, which is said to have been issued by the drawee bank. In view of these aspects, the trial court has taken the view that since the complainant has failed to mark in evidence the dishonour memo issued by the drawee bank, he has failed to prove the crucial factum regarding the dishonour of the cheque by the drawee bank and therefore the accused is entitled for the benefit of acquittal. It is common ground that the appellant-complainant had produced and marked as Ext.P-2 cheque dishonour memo, which was issued by the complainant's collection bank, viz., Syndicate Bank, Guruvayoor Branch. The main point to be decided in this appeal is as to the correctness or otherwise of the said finding made by the trial court. The first page of Ext.P-2 is the memo dated 5.6.2015 issued by the complainant's collection bank (Syndicate Bank, Guruvayoor Branch), whereby the appellant-complainant has been intimated that the cheque presented by him bearing No.10157731 dated 30.5.2015 for Rs. 1 lakh has been dishonoured by the drawee bank concerned in view of the reason intimated to the Central Account Office of the collection bank through the CTS (Cheque Truncation System) inward return report received as on 2.6.2015. The 2nd page of Ext.P-2 is the above referred CTS inward report of the Central Account Office at Chennai of the Syndicate Bank. Therein it is intimated that the above said cheque for Rs. 1 lakh has been returned as per CTS system with the reason "funds insufficient". It is contended by Sri.P.Ramachandran, learned counsel appearing for the appellant/complainant that at any point of time during the trial has the accused raised any challenge as against the factum of dishonour of the cheque during cross-examination of PW-1. That PW-1 had tendered evidence and had also marked Ext.P-2 documents as referred to hereinabove and the marking and admissibility of the said evidence has never been objected to by the accused. Moreover, during the cross-examination of PW-1, not even a remote suggestion has been put forward by the learned counsel appearing for the defence so as to even indirectly challenge the factum of dishonour of the cheque as stated in the evidence given in examination in chief (by proof affidavit) of PW-1. Therefore, it is argued by the appellant's counsel that since no challenge whatsoever has been raised by the accused as against the crucial factum of dishonour of cheque, it is only to be treated that the accused has accepted the above said evidence given by PW-1 regarding the dishonour of the cheque and that in such a scenario it was not right and proper for the trial court to have unilaterally taken the above said issue for consideration. Further, it is pointed out that during the time of arguments before the trial court, counsel for the accused has never appraised any such arguments before the trial court and that the said issue has been so unilaterally taken by the trial court, etc.