Kottaram Trading Calicut vs. Mohammed Kunhi.V - Kerala High Court, 12 March 2019

The petition on hand is filed by the complainant seeking leave to file appeal against the judgment of the Judicial First Class Magistrate Court-VIII, Kozhikode in a prosecution filed under Section 142 of the Negotiable Instruments Act, 1881 (for short, 'the N.I Act') acquitting the accused under Section 255(1) Cr.P.C for an offence under Section 138 N.I Act.

Sri.Paul P Abraham advanced arguments for the petitioner and Smt.T.B Mini, for the 1st respondent.

According to the learned counsel for the petitioner, it was established from the evidence adduced by the complainant before the Trial Court that the bounced cheque which formed the basis of the prosecution on hand was issued by Sri. Muhammed Kunhi.V, who is none other than the proprietor of Rainbow Agencies, Thirunavaya Road, Puthanathani P.O, Malappuram,

Crl.L.P.No.48 of 2019 3 Pin-676551 and it was drawn from the personal account maintained by him with a Bank.

According to the learned Counsel, valid grounds are there for the petitioner to succeed in the prosecution if permitted to file Crl. Appeal against the judgment acquitting the accused. But the learned Counsel failed to point out any such grounds.

Per contra, Smt.Mini has drawn the attention of this Court to the cause title of the prosecution to submit that the accused arrayed therein is Mr. Muhammed Kunhi.V in his capacity as proprietor of Rainbow Agencies, Thirunavaya Road, Puthanathani P.O, Malappuram, Pin-676551. 6. In the prosecution, the specific case of the complainant was that he had transactions with Rainbow Agencies, Thirunavaya, Puthanathani P.O and Mr. Muhammed Kunhi.V was the proprietor of the concern. Mr. Muhammed Kunhi.V himself in his capacity as the proprietor of the firm was arrayed as

Crl.L.P.No.48 of 2019 4 respondent also. As per the allegations, as part payment towards cost of certain articles purchased by Rainbow Agencies from complainant's firm, three cheques referred to in the complaint had been drawn and issued by the accused to the complainant. Cheques when presented for collection, was returned dis- honoured for the reason of insufficiency of funds in the account of the accused. The plea of the complainant that lawyer notice was sent and complaint was filed within the time prescribed by the Act are well established by materials and are not disputed by the accused also.

On denial of the particulars of the accusations in the complaint when read and explained to him, the trial commenced. The complainant was examined as PW1 and a witness was examined as PW2. While PW1 was examined an attempt was made to controvert the service of notice marked in evidence as Ext.P6 on the accused. He denied the suggestion made by the accused that notice was not served on him for the reason that he

Crl.L.P.No.48 of 2019 5 was not the proprietor of 'Rainbow Agencies' but a stranger to the transaction. Complainant therefore summoned the Post Master of Ananthavoor Post Office and examined as PW2. PW2, categorically stated that she had delivered the postal article (original of Ext.P6) to the accused. She had brought Ext.P8 document to establish that Ext.P6 was delivered to the addressee. The accused, who was available in the court, was also identified by her as the person who accepted the notice. The trial court expresses doubt on the identification of the accused in the court by PW2 for lapse of 3 years after alleged service of notice in the year 2015 and impossibility of a Post Master to recollect all recipients of notice within his juri iction, especially when she has no claim of previous acquaintance with those people. Complainant failed to produce any materials to establish that Mr.Muhammed Kunhi.V was the proprietor of the concern 'Rainbow Agencies' though on that aspect a specific denial was made by the accused.

Crl.L.P.No.48 of 2019 6

During defence evidence, accused caused himself to be examined as DW1 and marked Ext.D1. Ext.D1 is nothing but the GST Registration Certificate of Rainbow Agencies, Thirunavaya Road, Puthanathani P.O, summoned from the GST office. DW1 is none other than the GST Officer, GST Department, Sales Tax Office, Kottakakam. She was the Commercial Tax Officer of the Department during 2011-2012. According to her one Rainbow Agencies, Thirunavaya Road, Puthanathani P.O, had registration, but, the owner of it is none other than one Mr. T.P.Muhammed Kunhi. The copy of the Certificate of Registration after a comparison with the original one was brought by her and marked in evidence as Ext.X1. The trial court which had the opportunity to see the accused in person had also specified in the judgment under challenge that the person in the photograph is not the accused.

Therefore, the defence had successfully established that the proprietor of the concern namely Rainbow Agencies at

Crl.L.P.No.48 of 2019 7 the relevant time when the prosecution was filed was one Mr.T.P.Muhammed Kunhi and not Mr. Muhammed Kunhi.V. Therefore, the prosecution launched against a wrong person as the representative of the concern will not sustain and the leave sought is only to be declined In the result, petition seeking leave is dismissed and leave to file appeal is declined. MARY JOSEPH JJ/ JUDGE