IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 CRL.A.No. 647 of 2001() ----------------------- CC.517/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT(S)/COMPLAINANT -------------- KUNJUMON, S/O MATHILAKATH VEETTIL IBRAHIM, MUTHEDATHARA DESOM, THANNIAM VILLAGE, THRISSUR BY ADV. SRI.C.KHALID RESPONDENT(S)/ACCUSED --------------- 1. K.BREMKUMAR (MANAGING PARTNER) S/O T.K.KRISHNANKUTTY KAIMAL, THAIKKATTUSSERY DESOM, EDAKKUNNI VILLAGE, THRISSUR 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM. PUBLIC PROSECUTOR SMT.PUSHPALATHA SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.647/2001 -------------------- Dated this the 11th day of March, 2009 JUDGMENT The complainant in C.C.No.517/97 on the files of the Judicial Magistrate of First Class-II, Thrissur, is the appellant herein. The accused was prosecuted for the offences punishable under Sections 406 and 420 IPC and Section 138 of the Negotiable Instruments Act. The Court below essentially considered the case under section 138 of the Act. Court below considered the evidence in detail and proceeded to acquit the accused. Hence the appeal by the complainant after obtaining leave of this Court. 2. The case of the complainant is that the accused borrowed an amount of Rs.90,000/- on 7.1.1997 and agreed to re-pay that amount on 30.6.1997. It was not done. The accused then came to the shop of the complainant and issued Ext.P1 cheque dated 4.7.1997 for re- payment of the amount, for an amount of Crl.A.647/2001 2 Rs.90,000/- The cheque on presentation was dishonoured due to lack of sufficient funds. Ext.P3 lawyer’s notice was sent on 28.7.1997 There was no reply to the same, nor was there any payment. Hence the complaint was lodged. 3. The case of the accused was that certain amount was borrowed by the accused from the complainant in December, 1996, and two blank signed cheques were given by the accused to the complainant, who insisted on the same as a security. Ext.D1 lawyer’s notice was issued in March, 1997, on behalf of the complainant alleging that Ext.D2 cheque had been issued on 12.2.1997 for an amount of Rs.1,40,000/-. Assertion in Ext.D1 lawyers’ notice was that an amount of Rs.1,40,000/- was borrowed on 7.1.1997. On receipt of the said notice, accused went and met the complainant and had re-paid Rs.25,000/-, receipt of which is acknowledged in the original of Ext.D1, as evidenced by Ext.D1 (a) endorsement. The original of the cheque Crl.A.647/2001 3 was also returned as evidenced by Ext.D2. The accused was under the impression that the transaction is closed. 4. Later, the accused received Ext.P3 lawyer’s notice and went and met the complainant. Complainant had demanded a further amount of Rs.8,000/- which was paid on 16.1.1999, after the institution of the complaint. That was on the assurance given by the complainant that the complaint will be withdrawn. That was not done. 5. Court below, on an elaborate consideration of the evidence, came to the conclusion that the version given by the complainant as regards the transaction between the complainant and the accused is not consistent. It was asserted in Ext.D1 lawyer’s notice that the accused had borrowed an amount of Rs.1,40,000/-. But the said transaction is seen to have been closed after the accused had paid an amount of Rs.25,000/-. On the other hand, the Crl.A.647/2001 4 assertion made in Ext.P1 lawyer notice is that the accused had borrowed an amount of Rs.90,000/- on 7.1.1997. Court below took note of these inconsistencies and found that it will be unsafe to convict the accused on such evidence. Hence the accused was acquitted under Section 251(1) of the Cr.P.C. The appeal is against the order of acquittal. 6. I heard learned counsel on either side. 7. Learned counsel for the appellant contended that the complainant had complied with all the formalities prescribed under law. However, the accused had not even bothered to give a reply to the notice. Court below had not appreciated the evidence . 8. As stated above, the Court below had proceeded to enter a finding of acquittal on the ground that there is inconsistency in the version given by the complainant as regards the transaction stated to have been Crl.A.647/2001 5 entered into between the complainant and the accused. I am inclined to affirm the said finding of the Court below, on re- appreciation of the evidence. It is the case of the complainant that the accused had borrowed an amount of Rs.90,000/- on 7.1.1997. But a perusal of Ext.D1 lawyer’s notice, which was sent several months prior to the dispatch of Ext.D3, shows that, according to the complainant, the accused had borrowed an amount of Rs.1,40,000/- on 7.1.1997. If there were two different transactions both consisting of borrowals of different amounts by the accused in cash, from the shop of the complainant on the same day, then, normally, same must be mentioned in the first notice, Ext.D1, sent on behalf of the complainant. In the present case that is not done. Secondly, complainant’s case in Ext.D1 notice is that the accused had borrowed an amount of Rs.1,40,000/- on 7.1.1997 and had issued Ext.D2 cheque in discharge of the said liability. But it has come out in evidence Crl.A.647/2001 6 that the entire transaction was closed on the accused paying an amount of Rs.25,000/- as evidenced by Ext.D2. Learned counsel for the appellant contended that Rs.1,40,000/- might have been paid by the accused. Significantly, the complainant had no such case, nor was there any such suggestion put forward to the accused who was examined as DW1. There is no explanation for the return of Ext.D2 cheque, which, though bears the amount of Rs.1,40,000/-, seems to have been returned, on the accused paying an amount of Rs.25,000/-. 9. In the present case, Ext.P3 is dated 28.7.1997. Earlier lawyer’s notice, Ext.D1, which also mentioned about the transaction of Rs.1,40,000/-, was sent on 1.3.1997 and the payment of Rs.25,000/- took place in March, 1997. In normal circumstances, one would have expected the complainant to mention the receipt of an amount of Rs.25,000/- in discharge of the liability earlier incurred, while sending Ext.P3 lawyer’s notice in Crl.A.647/2001 7 July, 1997. This is especially so since the alleged borrowal of the amount by the accused from the complainant has taken place on the same date, namely on 7.1.1997. That has also not been done. 10. Apart from all this, I take note of the fact that all entries in the cheques in question are seem to have been made with the aid of a typewriter. This would give credence to the version of the accused that signed blank cheques were compelled to be handed over by the accused to the complainant and the rest of the entries were filled up without the knowledge of the accused. 11. I am in agreement with the findings of the Court below and the order of acquittal. In the result, appeal is found to be bereft of merit and hence the same is dismissed. V.GIRI, Judge mrcs