CRL.A.No.241 of 2008 (A)

## **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.241 of 2008 (A)** ## **------------------------------** **ORDER IN CRL.L.P.8/2008 Dated 04/01/2008 CC.100/2005 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM** **....................** ## **APPELLANT: COMPLAINANT** **--------------------------------** **C.V.SANTHAKUMAR, S/O.VAVA (DIED) CHITTAYL VEEDU, ULLALA KARA, THALAYAZHAM VILLAGE VAIKOM TALUK.** **BY ADV. SRI.PKM.HASSAN SRI.J.JULIAN XAVIER** ## **RESPONDENTS: ACCUSED AND STATE** **--------------------------------------------** ## **1. T.O.XAVIER, THURUTHEL HOUSE KOTHAVARAKARA, THALAYAZHAM VILLAGE VAIKOM TALUK.** ## **2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** ## **BY ADV. SRI.N.RATHEESH SMT.SUMA RATHEESH PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED** **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. Appeal No.241 of 2008 -----------------------------------------------Dated this the 31[st] day of March, 2008 ## **JUDGMENT** The complainant in C.C.100/05 on the file of the Judicial First Class Magistrate's Court, Vaikom is the appellant. He challenges in this appeal the correctness and sustainability of the judgment of acquittal passed by the Magistrate under Section 255(1) Cr.P.C acquitting the first respondent of offence punishable under Section 138 of the N.I. Act. 2. The appellant filed complaint in the court below inter alia alleging that himself and the first respondent are close friends; that while so, during November, 2004, the first respondent asked for a loan of Rs.50,000/-; that as the appellant was not having funds with him then he asked the first respondent to come over to his house on 03/12/04 with necessary records in proof of Crl. Appeal No.241 of 2008 -2- advancing of the loan and to repay the same; that accordingly, the first respondent came over to his house on 03/12/04 and received Rs.50,000/- from him issuing Ext.P1 cheque drawn on his account at the Ullala branch of the State Bank of India wherein the date and the amount had already been recorded respectively as 10/12/04 and Rs.50,000/- and affixing signature therein; that the first respondent had thereupon made the appellant to believe that on presentation of the cheque on or after 10/12/04 it would be encashed; that accordingly, he presented the cheque on 10/12/04 at the Ullala branch of the State Bank of Travancore and thereupon, it was returned dishonoured under Ext.P2 memo assigning the reason “insufficient funds” that thereupon, the original of Ext.P4 notice dt.14/12/04 was caused to be issued through lawyer by registered post with acknowledgment due under Ext.P3 postal registration receipt Crl. Appeal No.241 of 2008 -3- informing the first respondent of the dishonour of the cheque and demanding payment of the amount covered by the said cheque; that the said notice was received by the first respondent under Ext.P5 postal acknowledgment card but he has not paid up the amounts covered by the cheques either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the N.I. Act. 3. It is also alleged in the complaint that there are witnesses who are having direct knowledge of commission by the first respondent of offence alleged, described in the witness schedule. The learned Magistrate registered the complaint on the file of his Court as C.C.100/05 taking cognizance of the offence under Section 138 of the N.I. Act. On appearance of the first respondent in the court below pursuant to receipt of summons he was served with copies of all relevant records Crl. Appeal No.241 of 2008 -4- in the case and he was questioned by the Magistrate 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. 4. On the side of the appellant/ complainant he gave evidence as PW1 and got marked Exts.P1 to P5. On the complainant closing his evidence, the first 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. 5. On the defence side DWs.1 and 2 were examined. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid and acquitted the first respondent in view of his finding that Ext.P1 cheque is not shown to be one issued by the Crl. Appeal No.241 of 2008 -5- first respondent to the appellant in discharge of a legally enforceable debt owed by the first respondent to the appellant. Hence, this appeal by the aggrieved appellant/complainant. 6. The only contention that is canvassed before me by the learned counsel for the appellant is requesting for a remand of the case to the court below for examination of one Udaya Kumar who is stated to have witnessed the transaction when he came over for purchase of some article from the house of the appellant as stated by the appellant as PW1 in cross examination. 7. It is not in dispute that the only evidence that is adduced by the appellant to prove his case is his own oral testimony other than Exts.P1 to P5 produced in the case. This means that other than the interested oral testimony of PW1, there is nothing else in evidence to establish the case of the appellant that he advanced Rs.50,000/- by way Crl. Appeal No.241 of 2008 -6- of loan to the first respondent. In the complaint filed by the appellant in para 9, it has been stated that there are witnesses who are having direct knowledge of the transaction and of the first respondent having committed the offence alleged and that witness schedule is filed along with the complaint. Witness schedule filed contained the names of the Manager, State Bank of India, Ullala branch as also the name of Ashokan, S/o Thankappan of Changeparambil house. When asked in cross examination, PW1 the appellant has stated that he does not know Ashokan, S/o Thankappan of Changeparambil house. Probably what the appellant wants now is to have Udaya Kumar examined in the place of Ashokan, S/o Thankappan saying that he is one who has witnessed the occurrence. It is not proper for the appellant to take such a stand before the appellate court and to ask for a remand of the case to have the said person Udaya Kumar -7- Crl. Appeal No.241 of 2008 examined as witness on his side. The specific case suggested to PW1 in cross examination is as to whether he has not been set up to file a complaint by the members of the Bharana Samithy of Ullala Merchants' Association which Samithy succeeded the Bharana Samithy of which the treasurer was the first respondent, on account of the animosity towards him, by misusing a cheque that he had kept in the office while he was the treasurer of Ullala Merchants Association which he had forgotten to take. 8. Counsel for the appellant contends that the first respondent has got also an inconsistent case that the signature in Ext.P1 is not his signature though he admits that the cheque is one written on a cheque leaf issued in his account. True it is that there are some inconsistencies in the defence set up, but all the same, the inconsistency in the defence contention is not a ground to uphold the case Crl. Appeal No.241 of 2008 -8- of the appellant and to enter into a conviction of the first respondent. 9. It is also strange that in the complaint the allegation is that the first respondent asked for a loan of Rs.50,000/- as early as in November, 2004 and as the appellant was not having funds with him, he asked the first respondent to come over to his house at Thalayazham on 03/12/04 which is approximately one month after the date on which the first respondent asked for a loan. If at all it is that the first respondent asked for a loan early in November, 2004 and that was advanced after a month on 03/12/04, it is highly improbable that the first respondent would issue a cheque bearing date which falls within seven days of the advancing of the loan namely 10/12/04. 10. As found by the court below, there is absolutely no convincing evidence to establish that the appellant would have advanced Crl. Appeal No.241 of 2008 -9- Rs.50,000/- without any record whatsoever receiving only a cheque. No evidence also is attempted to be let in, either to prove the loan transaction or that the appellant who is not having funds in November, 2004 came by funds of more than Rs.50,000/- so as to advance Rs.50,000/- to the first respondent early in December, 2004. 11. It is worthy to note that the presumption under Section 139 of the N.I. Act is not regarding existence of debt or as regards existence of a legally recoverable debt, but merely a presumption in favour of the holder of the cheque that the same has been issued in discharge of any debt or other liability as has been held by the Apex Court in _Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC)_ . The appellant having miserably failed to establish the existence of debt or legally recoverable debt from the first respondent as alleged, a case for conviction under Section Crl. Appeal No.241 of 2008 -10- 138 of the N.I. Act does not stand made out as against the first respondent as rightly found by the court below. Consequently, therefore, this appeal is devoid of merit and deserves only to be dismissed confirming the acquittal of the first respondent by the court below of offence punishable under Section 138 of the N.I. Act. 12. In the result, confirming the acquittal of the first respondent by the court below of offence punishable under Section 138 of the N.I. Act, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-