K.C. Thomas vs Baby, Proprietor, Narmada Enterprises and State of Kerala

V.K. Mohanan, J.—As these appeals are arising out of a common judgment dated 4.3.2010 in C.C. Nos. 1029/98, 1042/98 and 1043/98 of the court of the Judicial First Class Magistrate-I, Aluva and all the parties to the appeals are one and the same and the question of law and facts involved are identical, these appeals are heard together and being disposed of by this common judgment. The appellant herein is the complainant in three separate private complaints filed alleging the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') before the trial court connected with the dishonour of seven cheques which altogether cover an amount of Rs. 3,40,000/-. During the trial of the above cases, the complainant is examined as PW1. Besides that, Exts. P1 to P31 documents were marked. Though no defence witness is examined, Ext. D1 is marked from the side of the defence. Initially, Crl.A. No. 1313 of 2010 and connected cases by a common judgment dated 20.3.2002 in the above calendar cases, the trial court acquitted the accused u/s 255(1) of the Cr.P.C. Challenging that judgment, the appellants herein preferred three appeals before this Court on an earlier occasion and this Court by a common judgment dated 2.7.2009 in Crl.A. Nos. 905, 944 and 971 of 2002 disposed of those appeals remanding the matter back to the trial court for fresh disposal according to law and on the basis of the evidence already available and further evidence, which the parties may adduce. Again, the trial court, as per its present impugned judgment, acquitted the accused and hence these appeals.

The case of the complainant is that he is a manufacturer of PVC pipes and the accused had purchased PVC pipes worth of Rs. 3,40,000/- and towards the discharge of the said liability connected therewith and being the cost of the pipe, the accused issued seven cheques which are marked as Exts. P1 to P3 in C.C. No. 1029 of 1998 and P13 and P14 in C.C. No. 1042 of 1998 and Exts. P22 and 23 in C.C. No. 1043 of 1998 and when the said cheques were presented for Crl.A. No. 1313 of 2010 and connected cases encashment, the same dishonoured for want of sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of the statutory notice served on him and therefore, the accused has committed the offence punishable u/s 138 of the N.I. Act connected with the dishonour of those cheques. While denying the allegation of the complainant, the specific contention taken by the accused is that especially on the basis of Ext. D1 series, the cheques in question and the account to which the cheques in question pertained are not that of the accused and the complainant has miserably failed to prove that the accused is the proprietor who issued the cheques.

Heard the learned counsel for the appellant and I have perused the impugned judgment. During the course of hearing of these appeals, the learned counsel, after inviting my attention to paragraph 13 of the impugned judgment, submitted that after the remand of the matter as per the judgment of this Court dated 2.7.2009, the trial court passed a Crl.A. No. 1313 of 2010 and connected cases judgment without complying with the direction issued by this Court while remanding the matter and paragraph 13 is the verbatim reproduction of the earlier judgment of the trial court which was already set aside by this Court while disposing of these appeals on 2.7.2009. Learned counsel for the respondent is also not disputing the said fact. If that be so, according to me, at this stage, this Court need not go into the merits or demerits of the contentions raised by the counsel for the appellant and the respondents. In this juncture, it is relevant to note that in paragraph 6 of the judgment dated 2.7.2009, this Court has observed as follows:-

It is true that the relevant account is maintained by Sri. P.K. Joseph as seen from Ext. D1 series account opening form. The said account is jointly maintained by Sri. P.K. Joseph and Sri. P.K. Thomas, as seen from the ledger folio Ext. P31 series. But in the reply notice Ext. P21, it is seen that the accused has admitted the issuance of the said cheques. The lower court has failed to consider that aspect. Further, the learned counsel for the appellant submitted that he may be given an opportunity to prove the transaction between the respondent and the firm of the appellant as, admittedly, the respondent has and connected cases business transactions with the appellant firm and in the reply notice Ext. P21 the respondent has admitted that for the amount due to the complainant firm, he has issued some cheques. Under these circumstances, I feel that the appellant firm should be given an opportunity to prove the transactions between the appellant firm and the respondent/accused. That being so, the matter has to be remanded to the lower court for fresh disposal. (underline supplied)

It is on the basis of the above finding and conclusion, this Court remanded the matter to the trial court. When the superior court remanded the cases to the trial court for a fresh disposal of the matter in terms of the direction contained in the remand matter, it is incumbent upon the trial court to dispose of the matter afresh, but strictly in accordance with the direction issued by the appellate or superior court. On a comparison of paragraph 13 of the present impugned judgment and paragraph 10 of the earlier judgment of the trial court, it can be seen that paragraph 13 of the present trial court judgment is the verbatim reproduction of the paragraph 10 of its earlier judgment. It is quite unbecoming on the part of the trial court and connected cases or the Presiding Officer, who is bound to dispose of the matter scrupulously following the direction and the mandate contained in the order of the appellate court judgment. Therefore, according to me, the matter again requires a remand to the trial court for fresh consideration and disposal in terms of the judgment dated 2.7.2009 of this Court in Crl.A. Nos. 905, 944 and 971 of 2002.

In the result, these appeals are disposed of setting aside the common judgment dated 4.3.2010 in C.C. Nos. 1029/98, 1042/98 and 1043/98 of the court of the Judicial First Class Magistrate Court-I, Aluva and those matters are remanded back to the trial court for fresh disposal according to law, on the basis of the evidence already available and further evidence which the parties may adduce as directed by this Court by the common judgment dated 2.7.2009 in Crl.A. Nos. 905, 944 and 971 of 2002. As the case pertains to the year 1998, the trial court is directed to dispose of the matter as expeditiously as possible, at any rate within a period of six months from the date of receipt of this judgment and the parties are directed to Crl.A. No. 1313 of 2010 and connected cases appear before the trial court on 2.5.2013. The Registry is directed to send back the records, including the judgment of this Court dated 2.7.2009 in Crl.A. Nos. 905, 944 and 971 of 2002 to the trial court forthwith.