IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 CRL.A.No. 956 of 2003() ----------------------- CC.333/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT/COMPLAINANT: ----------------------------------------- MUKUNDAN, S/O. ADHYAKESAVAN, KRISHNAKRIPA, SOUTH BAZAR LANE, VIYYUR, THRISSUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENTS/ACCUSED: ------------------------------------- 1. RADHAKRISHNAN, C/O. RAMANKUTTY, KOPPAYI HOUSE, VIYYUR, THRISSUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.VIJAYA BHANU FOR R1 SMT.P.MAYA FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 9/11/2010, THE COURT ON 11.11.2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 956 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the .......th day of November, 2010 JUDGMENT The appellant is the complainant in C.C.No. 333 of 2000 on the file of the Judicial First Class Magistrate Court -I, Thrissur. The appellant had filed the complaint under Section 138 of the N.I. Act against the first respondent. The accused had borrowed a sum of Rs.37,000/- from the complainant and to discharge the same, Ext.P2 cheque was issued. When the cheque was presented, the same was dishonoured. The complainant had issued a lawyer notice calling upon the accused to pay the amount within 15 days. But the accused failed to pay the amount and hence the appellant preferred the complaint against the accused. 2. The accused put up a defence that he had not issued any cheque to the complainant. According to the accused, the cheque Crl.A. No. 956 of 2003 2 was issued as security while receiving the amount in an auctioned kuri of Navodhaya Kuries, to which the accused was a subscriber. The accused had repaid the amount. 3. On the side of the complainant, PW1 was examined and Exts.P1 to P8 were marked. On the side of the accused, Dws. 1 to 3 were examined. The learned Magistrate, on considering the evidence, came to the conclusion that the complainant has failed to establish that Ext.P2 cheque was issued in discharge of a debt and legally enforceable liability and the accused was found not guilty of the offence under Section 138 of the N.I. Act and he was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the court below ought to have found that all the ingredients of Section 138 of the Crl.A. No. 956 of 2003 3 N.I. Act are proved by the complainant and therefore the finding of the court below that the ingredients of Section 138 of the N.I. Act are not proved is not correct. The learned counsel for the appellant further submitted that the appellant had issued Ext.P5 lawyer notice to the first respondent and inspite of receipt of that notice the first respondent did not give any reply either denying the execution of the cheque or denying the liability owed to the appellant. The learned counsel for the appellant further submitted that the defence raised by the accused is clearly an after thought to absolve from the penal liability. The learned counsel for the first respondent supported the judgment of the court below. 6. The case of the accused is that the complainant is the Director and Manager of Navodhaya Kuries, Trichur. The accused was a subscriber of a kuri conducted by the said kuri company. When he auctioned the kuri he had given a blank cheque and promissory note as security and when the accused defaulted payment of instalments the Crl.A. No. 956 of 2003 4 accused sold his autorikshaw to the complainant, who was the Manager of the kuri company for a sum of Rs.11,000/- Rs.10,000/- was deducted towards the amount due from the accused. The balance amount of Rs.1,000/- was not paid to the accused and when the accused demanded the amount and gave a complaint to the police, the complainant filed the above complaint before the Magistrate Court. 7. The complainant was examined as PW1, who deposed that the accused borrowed Rs.37,000/- from him on 7.12.1999 and on that day itself the accused gave Ext.P1 promissory note. Thereafter when the amount was demanded back, the accused issued Ext.P2 cheque dt.9.2.2000. The cheque was issued on 29.1.2000. The complainant would say that the accused came to the house of the complainant and issued Ext.P2 cheque on 29.1.2000 with the date 9.2.2000. 8. PW1 deposed that Ext.P2 cheque was presented for collection and the cheque was dishonoured with the endorsement 'funds insufficient'. Complainant came to know about the dishonour of the Crl.A. No. 956 of 2003 5 cheque on 28.3.2000 as per Ext.P4 memo. The complainant issued Ext.P5 statutory notice on 10.4.2000. The notice was accepted by the accused on 12.4.2000 as evidenced by Ext.P7. Ext.P8 is the extract of the account of the accused. 9. When the complainant was examined as PW1, he admitted that he is the Director and Manager of Navodhaya Kuries and that the accused was a subscriber to the kuri and the accused bid that kuri in auction and at that time the accused gave some documents. DW1 deposed that the complainant conducted Navodhaya Kuries and the accused subscribed to one kuri and he defaulted payment of instalments. The accused sold his autorikshaw to the complainant for Rs.11,000/- out of which Rs.10,000/- was adjusted towards the kuri liability and the balance amount of Rs.1,000/- was agreed to be paid at the time of giving the R.C. Book. 10. DW2 deposed that he was a surety of the accused, who bid the kuri conducted by Navodhaya Kuries, of which the complainant Crl.A. No. 956 of 2003 6 was the Manager. DW2 deposed that he was also a subscriber to the kuri conducted by that kuri company and when he bid the kuri he gave cheque as security. DW3 deposed that there was kuri transaction between the complainant and the accused and the autorikshaw belonging to the accused was handed over to the complainant. When cross examined, he admitted that he has no direct knowledge about that transaction. It has come out in evidence that PW1 was aware of the fact that the accused is a habitual defaulter to the kuri conducted by him. As observed by the learned Magistrate, it is highly difficult to believe that PW1 again advanced a loan of Rs.37,000/- to the accused. From the testimony of DW2, it is evident that the complainant was in the habit of receiving cheques when kuri amount was paid. PW1 admitted that the accused bid the kuri and the accused executed certain documents. 11. Considering all these aspects of the matter, I am of the view that the learned Magistrate is perfectly justified in finding that the Crl.A. No. 956 of 2003 7 accused succeeded to rebut the presumption, which was in favour of the complainant and that the complainant failed to establish that the accused issued Ext.P2 cheque in discharge of a debt and legally enforceable liability. The appellate court, in considering the appeal against the judgment of acquittal, is to interfere only when there are compelling and substantial reasons for doing so. Since the judgment of acquittal of the learned Magistrate is based on reasonable and plausible grounds, I find no reason to interfere with that judgment of acquittal. 12. Accordingly this appeal is dismissed as it is without any merits. (M.L. JOSEPH FRANCIS) Judge tm