## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN
MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930
CRL.A.No. 1147 of 2002
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CC.449/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA
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## APPELLANT/COMPLAINANT:
R.BALAKRISHNAN S/O. GOPALAN, PUTHUSSERY, PERAVOOR.
BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS
## RESPONDENTS/STATE & ACCUSED:
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. AKKAL BALAGOPALAN, S/O. SHANKARAN NAIR, AKKAL HOUSE, MANATHANA.
BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.K.V.PAVITHRAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## K.P. Balachandran, J.
--------------------------Crl.A.No. 1147 of 2002
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## **JUDGMENT**
Appellant is the complainant in C.C.No.449/98 on the file of the Judicial First Class Magistrate's Court, Kuthuparamba. He assails in this appeal the correctness and sustainability of the acquittal of the second respondent by the court below of offence punishable under Section 138 of the Negotiable Instruments Act, vide Section 255(1) Cr.P.C.
2. Appellant filed complaint in the court below
alleging, inter alia, that himself and the second respondent are known to each other and they are friends for a long period; that on 12.4.1998, the second respondent borrowed from him an amount of Rs.40,000/- on the understanding that it would be repaid within one month and the second respondent issued Exhibit P1 cheque dated 11.5.1998, drawn on his account maintained with the Peravoor Cooperative Urban Bank Ltd.; that on presentation of
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the cheque for collection, it was returned dishonoured along with Exhibit P2 memo stating that there is no sufficient amount in the account of the second respondent to honour the same; that thereupon, original of Exhibit P4 notice was issued to the second respondent through Lawyer on 19.5.1998 under Exhibit P5 postal registration receipt informing the second respondent of the dishonour of Exhibit P1 cheque; that the same was accepted by the second respondent under Exhibit P6 postal acknowledgment card and that apart from causing Exhibit P7 reply being issued thereto, he has not cared to pay up the amounts covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act.
3. The learned Magistrate recorded the sworn statement of the appellant and registered the complaint on the file of his court as C.C.No.
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449/98, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act.
4. On appearance of the second respondent in the court below pursuant to receipt of summons, he was served with copies of all relevant records in the case and the learned Magistrate questioned him, reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below.
5. On the side of the complainant, PWs 1 and 2 were examined and Exhibits P1 to P7 were got marked. On the complainant closing his evidence, the second respondent/accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied
all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to the second respondent, the appellant is an agent of one P.C.Sukumaran, who is conducting a chitty; that while receiving the prize
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amount in the chitty from the said Sukumaran, he had issued a signed blank cheque and a signed blank stamp paper by way of security; that though he has paid up the entire amount in the chitty, the said Sukumaran did not return those documents and has misused the said cheque for filing this false complaint through the appellant/complainant and that no amount is due from him to the appellant. On the defence side, DW1 was examined.
6. The court below considered the case in the light of the evidence adduced as aforesaid and acquitted the second respondent/accused finding him not guilty for the reason that the complainant has not proved that the second respondent has issued the cheque in discharge of a legally enforceable debt and further that there is no convincing evidence to establish that proper notice under proviso (b) to Section 138 of the Negotiable Instruments Act had been issued to the second respondent so as to furnish a cause of action to
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the appellant to file a complaint under Section 138 of the Negotiable Instruments Act. Hence this appeal by the aggrieved appellant.
7. It is vehemently contended before me by the learned counsel for the appellant that the case of the second respondent is that he has issued a cheque to one P.C.Sukumaran, who was running a chitty, when the second respondent prized the kuri and received the prize amount and the second respondent has no case that he has discharged the debt due under the cheque to the appellant; that the contention that the amount due under the cheque is payable to somebody else is not a contention that is tenable and that therefore, the court below should have found that amount is due to the appellant, as claimed under Exhibit P1 cheque. It is further contended by the counsel that Exhibit P4 is the copy of notice issued to the second respondent under Exhibit P5 postal registration receipt and the doubt regarding receipt of notice
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by the second respondent stands cleared, in view of Exhibit P7 reply notice caused to issued by him to Exhibit P4 notice and that therefore, it cannot be said that there is any defect, which renders the complaint not maintainable.
8. It is true that Exhibit P7 reply notice is issued in reply to Exhibit P4 notice. When reply notice is there, which shows that it is issued on instructions from the second respondent in reply to Exhibit P4 notice, the further questions as to whether Exhibit P4 was actually addressed to the second respondent and whether it has been properly
served on him gain little importance. No argument
is advanced by the counsel for the second respondent to contend that Exhibit P4 is not a
notice which satisfies the requirements of a notice provided under proviso (b) to Section 138 of the Negotiable Instruments Act, when it is established by Exhibit P7 reply notice that Exhibit P4 notice has been received by the second respondent. Hence,
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all statutory requirements for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act stand satisfied.
9. However, there is absolutely no evidence in the case, apart from the interested testimony of the appellant as PW2, in proof of his having advanced Rs.40,000/- by way of loan to the second respondent. The Apex Court in **Krishna Janardhan Bhat v. Dattatraya G. Hegde** (2008 (1) KHC 410) has held that presumption under Section 139 of the Negotiable Instruments Act is not regarding existence of a debt or existence of a legally recoverable debt, but, it merely raises a presumption in favour of the holder of the cheque that the same has been issued in discharge of any debt or other liability. The said presumption available under Section 139 of the Negotiable Instruments Act by itself will not save the appellant's case, as there is no convincing evidence regarding his advancing of Rs.40,000/- to
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the second respondent and the second respondent does not admit of having received such a loan from the appellant. In the circumstances, acquittal of the second respondent by the court below of offence under Section 138 of the Negotiable Instruments Act, cannot be faulted. This appeal is devoid of merit and deserves only to be dismissed, confirming the acquittal of the second respondent by the court below.
In the result, confirming the acquittal of the second respondent by the court below of offence punishable under Section 138 of the Negotiable
Instruments Act, I dismiss this criminal appeal.
31[st] March, 2008 (K.P.Balachandran, Judge) tkv
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K.P.Balachandran, J. --------------------Crl.A.No.1147 of 2002 ---------------------
## **JUDGMENT**
31[st] March, 2008
