IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.A.No. 293 of 2003() ------------------------------------ CRA.80/1999 of ADDL.SESSIONS COURT, PARAVUR CC.256/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT(S): COMPLAINANT: -------------------------- K.VARGHESE GEORGE, MATTAKKAL HOUSE, MEKKADU P.O., ERNAKULAM DIST. BY ADVS. MR.P.SANJAY MR.ANUB ALIAS RESPONDENT(S): ACCUSED & STATE: ------------------------ 1. K.V.THOMAS, MATTAKKAL HOUSE, UNIVERSITY COLONY, KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MR.B.RAMACHANDRAN FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- Crl.A.NO.293 OF 2003 ------------------------------ Dated this the 3rd day of July, 2009 JUDGMENT This is an appeal preferred against the judgment of acquittal passed by the Additional Sessions Judge, North Paravur in Crl.A.No.80/1999. The said appeal was preferred against the conviction and sentence passed by the Judicial Magistrate of First Class-II, Aluva in C.C.No.256/1996. It is the case of the complainant that the accused who is his brother had borrowed a sum of Rs.30,000/= and towards the discharge of the same, had issued a cheque, which when presented for payment, returned with the endorsement of insufficiency of funds. After complying with the statutory formalities, prosecution had been launched under Section 138 of the N.I.Act. The case of the defence is that the accused approached his brother for a loan of Rs.30,000/= at the time of construction of his house and his brother handed over an Indira Vikas Pathra and later as the accused could get the amount from other sources, he did not use the Indira Vikas Pathra and therefore, informed the complainant about the same. 2 CRL.ANO.293/03 While so, Dw2, who was working along with DW1 had requested for some amount from DW1 and he was taken to the complainant and the complainant gave him the Indira Vikas Pathra and as the complainant was not acquainted with DW2, accused gave a cheque as security and it is that cheque which is presented for encashment under the pretext he had borrowed the amount. So, the case of the complainant is that of a positive borrowal by the accused from him and the cheqe is said to be towards the discharge of the liability. The case of the accused is that he has not borrowed any amount but had issued a cheque as security since DW2 was not quite familiar with the complainant. So, these are the facts which requires scrutiny. PW1 admits about the handing over of Indira Vikas Pathra to DW1. So, the Indira Vikas Pathra loom large in this transaction. Suppose as contended by DWs 1 and 2 , PW1 has handed over Indira Vikas Pathra to DW2 and that DW2 had given it to a finance company to get the amount and that the finance company had encashed it and appropriated that proceeds towards the liability due from DW2, then the case set up by the accused will be 3 CRL.ANO.293/03 probable and acceptable. If there is no such evidence then one has to hold that the case of Pw1 has to be accepted and even if it as security, it will be sufficient consideration. It has become necessary for this Court to set aside both the judgments of the court below and direct the trial court again to consider the matter afresh by affording opportunities to both sides in support of their respective contentions and if the accused as suggested now is able to produce some documents to prove that it was through DW2 the Indira Vikas Pathra has changed the hands, then the case of the accused would become more probable which would go against the complainant. So, as stated earlier, I set aside the judgments of both the courts and direct the court below to consider the matter afresh by affording equal opportunities to both sides and then dispose of the matter in accordance with law. The parties are directed to appear before the court below on 20.8.2009. M.N. KRISHNAN, JUDGE cl 4 CRL.ANO.293/03 M.N. KRISHNAN, J. --------------------------- Crl.A.NO.293 OF 2003 ------------------------------ 3rd day of July, 2009 JUDGMENT 5 CRL.ANO.293/03