## **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.201 of 2008 (A)**
**------------------------------**
**ORDER IN CRL.L.P. No.895 of 2007 DT.03/10/07. S.T.427/02 OF JUDICIAL FIRST CLASS MAGISTRATE-II, THIRUVANANTHAPURAM.**
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## **APPELLANT: PETITIONER/COMPLAINANT:**
**--------------------------------------------------**
**MANI, S/O. K.SEKHARAN, TC.43/732, MUTTATHARA, VALLAKKADAVU P.O., THIRUVANANTHAPURAM-8.**
## **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR**
## **RESPONDENTS: RESPONDENT/ACCUSED:**
**------------------------------------------------**
**1. BINOJ, S/O.R.NATARAJAN, BINOJ BHAVAN, TC.42/922, MUTTATHARA, VALLAKKADAVU P.O., THIRUVANANTHAPURAM-8.**
**2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
## **BY ADV. SRI.S.RAJEEV PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU**
**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.201 of 2008
-----------------------------------------------Dated this the 31[st] day of March, 2008
## **JUDGMENT**
The appellant is the complainant in S.T.427/02 on the file of the Judicial First Class Magistrate's Court-II, Thiruvananthapuram. He assails in this appeal the acquittal of the first respondent by the court below of offence under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C.
2. The appellant filed complaint in the court below alleging inter alia that himself and the first respondent are related and known to each other for the last so many years; that during July, 2000 on the request of the first respondent to advance him a loan of Rs.2,40,000/- for his business purposes promising to repay it within an year he advanced an amount of Rs.2,40,000/- on 15/07/2000 and the first respondent in repayment of the said debt gave him Ext.P1 cheque drawn on his account
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with the Vallakkadavu branch of the Bank of Baroda for an amount of Rs.2,40,000/-; that on the appellant forwarding the said cheque for collection through his bankers namely the Kadakampally branch of the South Indian Bank it was returned dishonoured by the drawee bank under Ext.P2 memorandum assigning the reason “account closed on 03/04/98”; that the cheque along with Ext.P2 memorandum was delivered over to him by his bankers under Ext.P3 that thereupon the original of Ext.P4 notice was caused to be issued through lawyer on 09/08/01 intimating the first respondent of the dishonour of the cheque and demanding payment of the amount covered by the cheque and the said notice was received by the first respondent on 10/08/01, but he has not cared to make payment of the amount covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the
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N.I. Act.
3. The judicial First Class Magistrate-
II, Thiruvananthapuram registered the complaint on the file of his court as S.T.427/02 taking cognizance of the offence under Section 138 of the N.I. Act.
4. On appearance of the first respondent in the court below pursuant to receipt of summons, he was served with copies of all relevant records in the case and 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.
5. On the side of the appellant, he gave evidence as PW1 and got marked in evidence Exts.P1 to P8. On the complainant closing his evidence the first respondent was questioned by the Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating
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circumstances appearing in evidence against him and maintained that he is innocent. According to him, Ext.P1 is made up on a cheque which he had entrusted with the appellant for being delivered over to his mother in connection with Onam and birth day of his sister's son; that he could not write the amount therein as he could write the amount only after his receiving the salary and depositing the amount in his account; that on receipt of information that his mother did not receive the cheque he caused enquiries being made through his father and then the appellant informed his father that he has lost the cover in which the cheque was enclosed; that after two months therefrom his sister filed divorce petition against the appellant's brother who had married her; and that the appellant thereupon filed the complaint against him as he is not on good terms with himself and his family members.
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6. The first respondent has tendered evidence as DW1 and has got marked in evidence Exts.D1 and D2. The court below considered the case in the light of the evidence adduced as aforesaid and acquitted the first respondent of offence under Section 138 of the N.I. Act consequent on his finding that the appellant failed to prove beyond reasonable doubt that the first respondent borrowed Rs.2,40,000/from him on 15/07/2000 and issued Ext.P1 cheque in discharge of the said debt or even that Ext.P1 cheque is supported by consideration. Hence, this appeal by the aggrieved appellant/ complainant.
7. It is contended before me by the learned counsel for the appellant that the extract of accounts of the first respondent obtained from Bank of Baroda for the period from 1995 till 03/04/98 the date on which the account was closed on the request of the first respondent, produced as Ext.P7 would go to
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show that at no point of time in between 1995 and the date on which the account was closed the first respondent was having a bank balance of more than Rs.700/-; and that therefore, his contention that cheque was being forwarded through him to be delivered over to his mother without filling the amount in the cheque as amounts could be remitted only on receipt of salary is nothing but utter falsehood and that therefore, the first respondent should have been found guilty of offence under Section 138 of the N.I. Act finding that Ext.P1 cheque is issued by him to the appellant in discharge of the debt of Rs.2,40,000/- which he had received from the appellant as alleged.
8. In support of the case of the appellant, there is only the solitary interested testimony of the appellant as PW1. The first respondent as DW1 has given evidence in support of his contention. It is true that the testimony of DW1 is not sufficient to
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establish the genuineness of the contentions raised by him. But all the same, it has come out in cross examination that during 1995 and up to 1998 the first respondent was in Gulf, but he was not working under his sponsor and he came back to his native place in 1998; and thereafter he has not gone back to Gulf and that he was not at all affluent during the period after 1994. The financial background of the first respondent was well known to the appellant and it is not at all likely that he would advance such a huge amount as Rs.2,40,000/- to the first respondent when the first respondent to the knowledge of the appellant was not having any business or any employment or any salary. Further, apart from the interested testimony of PW1 there is not even an iota of evidence to substantiate the case of the appellant that he has advanced such a huge amount as Rs.2,40,000/- to the first respondent and that too without
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obtaining any record in evidence thereof except Ext.P1 cheque. It is apposite to refer to the decision of the Apex Court in this context in _Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KHC 410 SC)_ wherein the Apex Court has held that the presumption under Section 139 of the N.I. Act is not regarding the existence of any debt or regarding existence of any legally recoverable debt, but that the only presumption available in favour of the holder of the cheque is that the same has been issued to him for discharge of any debt or other liability. It means that there is absolutely no presumption as regards the quantum of amount that is due to be discharged by the drawer of the cheque for which the payee named in the cheque has to adduce independent evidence to establish that he had advanced so much amount and that it is in repayment of the said amount that the cheque is issued to him. The appellant in the instant case having
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miserably failed to establish those aspects, the court below was correctly entering into finding against him and acquitting the first respondent of offence under Section 138 of the N.I. Act. The acquittal of the first respondent by the court below has only to be confirmed in the circumstances and this appeal dismissed.
9. In the result, confirming the acquittal of the first respondent of offence under Section 138 of the N.I. Act, I dismiss this Criminal Appeal.
K.P.BALACHANDRAN, JUDGE
kns/-
