Ravikumar vs Prasanna Kumar
2021 Latest Caselaw 23182 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
                           CRL.A NO. 80 OF 2006
 AGAINST THE ORDER/JUDGMENT IN CC 112/2002 OF JUDICIAL MAGISTRATE OF
                   FIRST CLASS -II, HARIPAD, ALAPPUZHA


APPELLANT/COMPLAINANT:

           RAVIKUMAR
           AGED 30 YEARS
           S/O.RAMACHANDRAN NAIR, SANTHI BHAVANAM,
           AKAMKUDI MURI P.O., PALLIPAD VILLAGE.

           BY ADV SRI.S.SREEKUMAR



RESPONDENTS/ACCUSED:

     1     PRASANNA KUMAR,
           SECRETARY, VALIYAKULANGARA KSHEEROLPADAKA SAHAKARANA,
           SANGHAM LTD., NO.128, MHADEVIKAD MURI,, KARTHIKAPPALLY.

     2     STATE OF KERALA REPRESENTED BY
           PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

           BY ADVS.
           SRI.K.N.PADMAKUMAR
           PUBLIC PROSECUTOR
           SRI.G.SANTHOSH KUMAR (P).



OTHER PRESENT:

           SRI SANAL P RAJ,PP




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 80 OF 2006               2




                             JUDGMENT

This appeal is filed under Section 378 (4) of the Code

of Criminal Procedure, against acquittal in C.C. No.

112/2002 on the file of the Judicial First Class Magistrate

Court-II, Haripad.

2. The appellant is the complainant at the court

below and the 1st respondent is the accused. In this

judgment, I refer the status of the parties as they are shown

in the impugned judgment, i.e, the complainant and the

accused.

3. The complainant instituted a private complaint

against the accused under Section 138 of the N.I Act

alleging that the accused, who was the Secretary of

Vellikulangara Ksheerolpadaka Sahakarana Sanghom Ltd,

borrowed a sum of Rs.1 lakh from him for the purpose of

the said society and towards the discharge of the said

amount, Ext.P1 cheque was issued, that on presentation it

was dishonoured for the reason "funds insufficient" and

"drawee's signature differs from specimen" and that the

statutory notice issued under Section 138(b) of the NI Act

was not heeded to by the accused.

4. On appearance of the accused, the particulars of

the offence were read over to him. He pleaded not quilty.

On the side of the complainant, the complainant was

examined as PW1 and the then Secretary of Vellikulangara

Ksheerolpadaka Sahakarana Sanghom Ltd was examined as

PW2. Exts.P1 to P8 were marked. On the side of the

defence, the Bank Manager was examined as DW1 and

Exhibits D1 to D4 were marked. After trial, the court below

found that the accused has failed to make out the case

under Section 138 of NI Act and accordingly, he was

acquitted as per the impugned judgment. The complainant

preferred this appeal challenging the said judgment.

5. Heard both sides.

6. Admittedly, the accused is the Secretary of the

society named Vellikulangara Ksheerolpadaka Sahakarana

Sanghom Ltd. The pleading in the complaint would show

that the accused borrowed the amount from the

complainant in his capacity as the Secretary of the society

and for the purpose of the said society. The cheque in

question is also that of the society. It was signed by the

accused representing the society as it's Secretary. But, the

accused has been arrayed in the complaint in his personal

capacity. An attempt has been made by the complainant

while in box to project a case that the accused borrowed the

amount for his personal purpose. That version is against the

pleadings. Even if that version is accepted as correct, then

there was no reason for him to issue the cheque of the

society.

7. The Manager of the Bank was examined as DW1.

He produced documents as well. His evidence coupled with

Exts.D1 to D4 would show that the account of the society is

in the joint name of the President and the Secretary and

both the President and the Secretary have to put signature

in the cheque issued by the society. But, the cheque in

question was issued by the Secretary alone. PW2, the then

secretary of the society, also gave evidence in that line.

DW1 deposed that one of the reasons for the dishonour of

cheque is that the signature is incomplete and that all the

signature required is not put in the cheque. In these

circumstances, it cannot be said that the complainant has

established that the accused in his capacity as the

secretary of the society borrowed a sum of Rs.1 lakh and

issued Ext.P1 cheque. As rightly held by the court below,

the complainant has failed to make out a case under Section

138 of NI Act. There is no merit in the appeal and it is

accordingly dismissed.

Sd/-

DR. KAUSER EDAPPAGATH

JUDGE

ska