IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 CRL.A.No. 602 of 2003(A) ------------------------ ST.1881/1999 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR .................... APPELLANT/COMPLAINANT ------------------------- MATHEW, S/O.AIPE, AMPATTU VEED, PARAVUTHARA MURI, N.PARUR. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT/ ACCUSED & STATE ------------------------------ 1. PAREEDKHAN, S/O.AHAMMED, CHERUPILLI VEED, CHIRAYAM KARA, ALANGAD VILLAGE, PARAVUR. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.S.CHANDRASEKHARAN FOR R1 BY PUBLIC PROSECUTOR SRI. P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, JUDGE CRL.A.No. 602 of 2003(A) J U D G M E N T 22ND JULY 2010 M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.A. No. 602 OF 2003 -------------------------- Dated this the 22nd day of July, 2010 J U D G M E N T The complainant in S.T. No. 1881 of 1999 on the file of Judicial First Class Magistrate, North Paravur has filed this appeal challenging the order of acquittal. Appellant lodged the complaint taken cognizance for the offence under Section 139 of Negotiable Instruments Act by the learned Magistrate, contending that first respondent purchased a jeep from the appellant for a consideration of Rs.71,000/- and paid an advance of Rs.21,000/- and agreed to pay the balance of Rs.50,000/- within six months. When he failed to pay the amount, appellant filed a complaint before the police and first respondent was called to the police station. At the police station, first respondent admitted the liability and paid Rs.16,000/- and towards the balance of Rs.34,000/- issued Ext.P1 cheque drawn on Kongorpilly Farmers Service Co-operative Bank, where he is maintaining an account. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds. Appellant sent Ext.P3 notice, which was served on the first respondent evidenced by Ext.P4 acknowledgment card and first respondent did not pay the amount and instead sent Ext.P5 reply Crl.A No.602/03 2 and thereby committed an offence under Section 138 of Negotiable Instruments Act. 2. The first respondent pleaded not guilty before the learned Magistrate. Appellant was examined as PW1 and Exts.P1 to P7 were marked. First respondent was examined as DW1 and exhibits D1 and D2 were marked. The learned Magistrate on the evidence found that Appellant failed to establish that Ext.P1 cheque was issued by the first respondent towards discharge of an existing debt or liability. It was found that it was under Ext.D1 agreement appellant sold the jeep to the first respondent and Ext.D1 provides that appellant need hand over the registration book of the vehicle, as well as other vehicular documents, only on receipt of the balance amount of Rs.50,000/- which is to be paid within six months. It is admitted case that appellant had already handed over the registration certificate of the vehicle, as well as other vehicular documents, to the first respondent and therefore, the case of the first respondent that he paid the entire amount could only be correct. The learned Magistrate also found that Ext.D1 agreement provide for payment of the balance amount of Rs.50,000/-, within six months time and the first respondent was liable to pay interest at Rs.30/- per month and in Crl.A No.602/03 3 such circumstances, case of the first respondent that the dispute is with regard to the non-payment of the interest could be probable and in such circumstances, it is clear that Ext.P1 cheque was not issued towards discharge of an existing debt or liability. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel for the appellant is that the learned Magistrate did not appreciate the evidence in the proper perspective and when issuance of the cheque and the signature therein is admitted by the first respondent, learned Magistrate should have found that Ext.P1 cheque was issued towards repayment of the loan to discharge the liability and in the light of the evidence, the order of acquittal is unsustainable. 5. I have gone through the evidence of PW1, DW1 as well as Ext.D1, the agreement entered into by the appellant and the first respondent where under a jeep was sold by the appellant and purchased by the first respondent. Ext.D1 shows that as contended by the appellant, first respondent agreed to pay Rs.71,000/- for the jeep and paid Rs.21,000/- and agreed to pay the balance amount of Rs.50,000/- within a period of six months. Ext.D1 specifically provides that for the payment of Rs.50,000/-, first respondent is liable Crl.A No.602/03 4 to pay interest at the rate of Rs.3 per month. Ext.D1 also provides that appellant need hand over the registration book of the vehicle, as well as other vehicular documents, only on receipt of the balance amount of Rs.50,000/-. The agreement also shows that as security, first respondent had handed over cheque No.46411. It is the admitted case that, that cheque was subsequently handed over by the appellant to the respondent. As rightly found by the courts below, it is difficult to believe the version of PW1 that the balance amount was not received. If balance amount was not paid by the first respondent, in the normal course, appellant would not have returned the cheque leaf mentioned in Ext.D1, which was entrusted as security and would not have handed over the registration book of the vehicle as well as the other vehicular documents, when the agreement stipulates that he need return them only on receipt of the entire amount. It is on this background, the case of the appellant is to be appreciated. 6. Even according to the appellant, Ext.P1 cheque was issued from the police station. His case is that Rs.16,000/- was paid in cash and for the balance amount of Rs.34,000/-, cheque was issued. When Ext.D1 provides for payment of interest, that too at a Crl.A No.602/03 5 punitive rate, when there is no agreement or settlement to relinquish the interest, it cannot be for the balance principal amount only. If a cheque was issued from the police station, it cannot be for the balance of the principal amount payable under Ext.D1, but could be for the interest also. If that be so, the cheque would not have been for Rs.34,000/-. 7. When the entire evidence is appreciated in the proper perspective, the finding of the learned Magistrate that Ext.P1 cheque was not issued towards discharge of the balance amount payable under Ext.D1 and that too for Rs.34,000/- is perfectly legal. In any event, the view taken by the learned Magistrate is definitely a plausible view that can be taken on proper appreciation of evidence. I find no reason to interfere with the order of acquittal. The Criminal Appeal is dismissed. M.SASIDHARAN NAMBIAR (JUDGE) vps Crl.A No.602/03 6 Crl.A No.602/03 7