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PETITIONER: TOMY JACOB KATTIKKARAN

       Vs.

RESPONDENT: DR. THOMAS MANJALY & ANR.

DATE OF JUDGMENT:       08/08/1997

BENCH: M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. K. MUKHERJEE, J.      Leave granted. 2.   On February  12, 1990  the appellant  filed a complaint against the  respondent No. 1 (respondent’ for short) in the Court of  the Chief  Judicial Magistrate, Ernakulam alleging commission of an offence under Section 138 of the Negotiable Instruments Act  (’Act’ for short). The sum and substance of the  various  allegations  made  in  the  complaint  are  as follows:      On  final   settlement  of   accounts  of  the  various commercial  transactions   that  took   place  between   the appellant and  the respondent,  an amount  of Rs. 3,00,000/- was found  due to  the former  from the  latter. In  payment thereof the  respondent issued  a cheque  in favour  of  the appellant  which   on  presentation   was  dishonoured.  The appellant then sent a notice to the respondent demanding the amount but  it came  back unserved  with an endorsement that the was  absent. Thereafter  another similar notice was sent to and  served upon  the respondent  but he  did not pay the amount. 3.   While  the   case  arising   out  of   the  appellant’s complaint, (which  was registered  as case  No. C. C. 167 of 1990), was  awaiting disposal  the respondent,  in his turn, filed a  complaint against  the appellant  before  the  same Magistrate, of alleged commission of offences under Sections 380, 465,  467, 468  and 471 I. P. C. The allegations in his complaint were  that in the year 1985 when he went abroad he entrusted three  blank cheques  of the  State Bank of India, Shenmugnam Road Branch, Ernakulam, duly signed by him to his wife to  meet the  family expensed.  The appellant,  who had access to  the house  of  the  respondent,  dishonestly  and stealthily removed  one of  those cheques from his house and utilised it  to  institute  a  false  case  against  him  by inserting his  (the appellant’s)  name as  the payee and the sum of Rs. 3,00,000/- as the amount to be paid thereunder. 4.   The case  that arose  out of  the appellant’s complaint ended in  conviction of  the respondent  while that  of  the latter in  discharge of  the appellant under Section 245 (1) Cr. P. C.

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5.   Against his  conviction  and  sentence  the  respondent preferred an  appeal in  the  Court  of  Session  which  was allowed and  he was acquitted. Assailing the above acquittal the appellant  filed an appeal before the High Court and the respondent filed  a revision  petition challenging the order of discharge  passed in  favour of  the appellant.  Both the appeal and  the revision  petition were  disposed of  by the High Court  by a  common judgment  whereby  the  High  Court upheld the  order of  acquittal of the respondent, set aside the order of discharge passed in favour of the appellant and directed the  Chief Judicial  Magistrate to proceed with his trial in accordance with law. The above judgment of the High Court is  under challenge  in this appeal at the instance of the appellant. 6.   Coming  first   to  the   impugned  acquittal   of  the respondent we  notice that the Additional Sessions Judge and the High  Court recorded  a finding  that before filling the complaint the  appellant did  not serve  a notice within the period prescribed  under Section  138 of  the Act. Since the above  finding   is  one   of  fact   and  based  on  proper appreciation of  the evidence  no  interference  in  respect thereof is called for. However, the impugned judgment of the High Court  so far  as it  set aside  the order of discharge passed in favour of the appellant cannot be sustained for on perusal of the record we find that the trial Court was fully justified in  concluding that the evidence adduced on behalf of the respondent was insufficient to make out a prima facie case against the appellant. 7.   For the foregoing discussion, we quash the order of the High Court  so far  as it  set aside  the discharge  of  the appellant  and  restore  the  order  of  the  learned  Chief Judicial  Magistrate,  Ernakulam  dated  February  17,  1992 passed in  C. C.  No. 229  of 1990.  The  appeals  are  thus disposed of.