## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942**
## **CRL.A.No.1218 OF 2005**
**AGAINST THE JUDGMENT IN ST 68/2000 DATED 06-05-2005 OF CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE**
**AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 399/2005 DATED 04-07-2005 OF HIGH COURT OF KERALA**
## **APPELLANT/COMPLAINANT:**
**K.KUNHAMMED KOYA S/O MOIDEEN KOYA, MUTHORANKANDIYIL HOUSE, PAROPPADY, P.O.MARIKUNNU, CALICUT.**
**BY ADV. SRI.R.BINDU (SASTHAMANGALAM)**
## **RESPONDENTS/ACCUSED & STATE:**
**1 A.V.SAKEER HUSSAIN 14/684,FAJITHA, SAFA NAGAR, P.O. KALLAI,CALICUT-3 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA , ERNAKULAM**
**R1 BY ADV. SRI.SUNNY MATHEW R2 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 18th day of June 2020**
The above appeal is filed by the complainant in S.T.No.68/2000 on the file of the Chief Judicial Magistrate Court, Kozhikode. The above complaint was filed by the appellant against the first respondent herein to prosecute him under Section 138 of the Negotiable Instruments Act (Hereinafter, the parties are mentioned by their rank before the trial court).
2. The case of the complainant is that on 13.9.1999, the accused borrowed an amount of Rs.1,00,000/- from the complainant agreeing to pay interest at the rate of 18% per annum within six months. When the amount was demanded, the accused issued a cheque for Rs.1,00,000/- on 15.10.1999, and on presentation of the cheque for encashment, it was returned due to the insufficiency of funds. After that a lawyer notice was issued demanding the amount. But, the same was returned with an endorsement that the accused has not claimed it. Hence, the prosecution under Section 138 of the Negotiable Instruments Act was initiated.
3. To substantiate the case, the complainant himself was
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examined as PW1. Exts.P1 to P7 are the exhibits marked on the side of the complainant. One witness was examined on the side of the defence. Exts.D1 to D4 are the documents marked on the side of the defence.
4. After going through the evidence and the documents, the trial court found that the offence under Section 138 of the Negotiable Instruments Act is not made out against the accused, and he was acquitted under Section 255(1) Cr.P.C. Aggrieved by the acquittal order, this Crl.Appeal is filed.
5. Heard Sri.R.Bindu Sasthamangalam, the learned counsel for the appellant/complainant, Sri.Sunny Mathew, the learned counsel for the first respondent/accused and Sri.B.Jayasurya, the learned Public Prosecutor.
6. Sri.Bindu Sasthamangalam, the learned counsel for the appellant/complainant, contended that the judgment of the trial court is perverse and against the fundamental principles of appreciation of evidence in proceedings initiated under Section 138 of the Negotiable Instruments Act. The counsel submitted that in the light of the judgment of the Apex Court in **Rohitbhai Jivanlal Patel v. State of Gujarat and another [2019(2) KHC 243]** , the findings of the Magistrate are unsustainable.
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The counsel also submitted that there is a valid notice. The court can presume that when a notice is returned with an endorsement 'unclaimed' the accused refused to accept the notice. The counsel takes me through the evidence of PW1 in detail and argued that the offence under Section 138 of the Negotiable Instruments Act is clearly made out in this case.
7. On the other hand, the learned counsel for the first respondent/accused, Sri.Sunny Mathew, submitted that the trial court considered all the aspects of the case. The trial court properly appreciated the evidence. The counsel submitted that even if another view is possible in an appeal against acquittal, this Court may not interfere with the well-considered judgment of the trial court.
8. The point for consideration in this appeal is that, whether an offence under Section 138 of the Negotiable Instruments Act is committed by the accused. After going through the evidence and the documents along with the judgment of the trial court, it is clear that the main ground on which the acquittal is passed is that the case of the accused is more probable. The trial court also found that there is challenge on the part of the accused in this case about the source of the
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complainant to raise an amount of Rs.1,00,000/-.
9. The complainant adduced evidence and he was examined before the lower court as PW1. He deposed that on 13.9.1997, the accused borrowed an amount of Rs.1,00,000/from him agreeing to pay 18% interest. The accused issued Ext.P1 cheque, and when the cheque was presented before the Bank, the same was returned due to the insufficiency of funds. Even after statutory notice, there was no response from the accused.
10. In cross examination, PW1 stated that he is conducting a tailoring shop and STD booth. According to him, the amount which was lent to the accused was kept in his house and that amount was taken by him as a loan from Kerala Financial Corporation for starting an aluminium factory and that it is that amount which was given to the accused. But at the same breath, PW1 stated that the amount given by Kerala Financial Corporation had been utilised for starting a factory of the complainant. Subsequently, the factory was closed. At that time, the amount was due from several persons, and Rs.1,00,000/- was obtained by him from his creditors, and it is that amount which was given by him to the accused, and he has
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kept that amount for starting a business in umbrella and the loan availed from Kerala Financial Corporation has been repaid by him, and there are documents to prove that fact. Hence, as far as the source of the complainant to pay the amount, there are contradictory versions. The trial court took note of the contradictory version and found that the source of the complainant to lend the amount is not proved. The counsel for the appellant submitted that the complainant need not prove the source of funds, and only if the accused challenged the source of the complainant to raise the amount, the burden shifts to the complainant to prove the source. He relied on the judgment of the Supreme Court in _Rohitbhai Jivanlal Patel_ 's case (supra). It is a settled position that the source of the complainant to lend the amount to the accused need to be proved by the complainant only if the same is challenged by the accused. If the accused challenged the source of the complainant to raise the amount with sufficient materials, the burden shifts to the complainant to prove this case. In this case, the accused challenged the source of the complainant to lend the amount. The complainant was cross examined on this aspect in detail. The complainant gave two different versions of his source to
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lend the amount. In such a situation, the trial court perfectly justified in acquitting the accused on that ground itself.
11. Moreover, after going through the evidence of DW1, the trial court found that his evidence is believable. It is an appreciation of the evidence by the trial court. The trial court considered the evidence of DW1 in detail, and after that, the same was accepted, and the trial court found that the statutory presumption in favour of the complainant in respect of Ext.P1 cheque has been rebutted by the accused by giving satisfactory independent evidence. There is nothing to interfere with this finding of fact by the trial court, which is done after appreciating the evidence of PW1 and DW1 along with the documents produced by the proper parties.
12. The lower court also found that there is no proper notice in this case. The trial court found that there is no satisfactory evidence on the side of the complainant to prove that the accused is residing at his wife's house as stated by him. Hence the notice issued by the complainant in that address in which the accused is not residing permanently is not sufficient to prove that the complainant issued a statutory notice. The trial court, in paragraph 9 of the impugned judgment, considered this
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point in detail and found that there is no legally valid statutory notice issued by the complainant to the accused. I see no reason to interfere with this finding of the trial court.
13. In the light of the above facts, I think the trial court considered the entire evidence and, after that, acquitted the accused. There is nothing to interfere with the impugned judgment.
Hence, this Crl.Appeal is dismissed confirming the judgment dated 6.5.2005 on the file of the Chief Judicial Magistrate Court, Kozhikode.
**Sd/-**
## **P.V.KUNHIKRISHNAN**
## **JUDGE**
**csl**
