IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 CRL.A.No. 194 of 2002() ----------------------- ST.4308/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... APPELLANT(S): COMPLAINANT ------------------------- A.S.BAFAKKITHANGAL, S/O.ABDULLA KOYA THANGAL, ATTEERI HOUSE, MALIYEKKAL, AMARAMPALAM P.O. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): ACCUSED/STATE ---------------------------- 1. PURUSHOTHAMAN, S/O.CHATHU, MANEERI HOUSE, PULLANGODU P.O., UTHIRAMPOYIL. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.ABJAD ALI FOR R2 SRI.K.B.ARUNKUMAR FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.3.2009, THE COURT ON 18/03/2009 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------------- CRL.A.NO. 194 OF 2002 ----------------------------------------- Dated this the 18th March, 2009 JUDGMENT Complainant is the appellant. His complaint against the accused for an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') ended in the acquittal of the accused. Questioning the legality, correctness and propriety of the judgment of acquittal, this appeal is preferred. 2. The case of the complainant is that towards discharge of a loan of Rs.45,000/-, Exhibit P1 cheque was issued by the accused promising its encashment on presentation on due course. The instrument presented was however dishonoured with endorsement 'account closed'. Statutory notice issued to the accused was acknowledged, and was responded by a reply notice raising untenable contentions. Amount covered by the cheque was not paid within the statutory period and thereupon the complaint was filed to prosecute the accused for the offence under Section 138 of the Act. Crl.A.No.194/02 2 3. To prove his case, the complainant examined himself as PW1 and also exhibited Exhibits P1 to P8. The accused examined one witness to prove his defence that the cheque issued in blank form to another was fraudulently collected and misused by the complainant. There was no transaction between the complainant and the accused was the case of the accused. The learned Magistrate after appreciating the materials tendered was not satisfied with the evidence let in by the complainant as regards the transaction in which Exhibit P1 cheque was allegedly handed over by the accused. Before me, learned counsel for the complainant relying on the evidence of DW1, the witness examined by the defence, contended that the handing over of the cheque by the accused to the complainant is admitted to by that witness, and that being so, the defence canvassed by the accused deserved only outright rejection. Assertion of DW1 that the accused had handed over the cheque and it was through him that cheque was handed over, is relied upon by the learned counsel as a most crucial circumstance proving the case of the complainant. No other Crl.A.No.194/02 3 point was urged before me by the learned counsel for the complainant to dispute the finding entered by the learned Magistrate that the transaction alleged in the case has not been satisfactorily established. 4. I am afraid, the solitary circumstance canvassed by the learned counsel for the complainant is not sufficient to interfere with the finding entered by the learned Magistrate. Sworn testimony of PW1 over the transaction was found not credible. Needless to point out that the learned Magistrate had the opportunity to watch the demeanour and deportment of the complainant when he was examined. After examining his evidence, the learned Magistrate concluded that the case set up by the complainant as to the circumstances under which the cheque was issued by the accused is not convincing, and that finding cannot be disturbed solely on the basis of some admission culled out from the witness examined by the accused. Even the complainant had no case the witness examined by the accused (DW1) was a party or even present when the cheque was handed over. Onus is always on the Crl.A.No.194/02 4 complainant to prove his case. As noticed by the Magistrate it was the case of the complainant, when he was examined as PW1, that pursuant to the demand made by the accused for a loan, a few days later, he met the accused on the road, and then, along with the accused he went over to a relative, who had promised to advance funds, and after collecting the sum from the relative the loan was extended to the accused. Immediately the accused handed over P1 cheque, that too with a future date for payment, is the version of the complainant. The improbability borne out in the transaction aroused suspicion in the mind of the learned Magistrate in accepting the version presented by the complainant. Merely because the cheque arose from the account of the accused and it bears his signature, the complainant is not relieved from showing that the transaction in which the cheque was issued was honest and bonafide. When suspicion over the transaction is caused and unless it is dispelled the case set up by the complainant is not acceptable. The normal remedy on dishonour a cheque, especially, when disputed questions over the transaction, are Crl.A.No.194/02 5 involved, is by having an adjudication through civil court. In the present case, the transaction alleged by the complainant was found not believable. Whatever be the lacuna in the defence canvassed by the accused, that will not enure to the benefit of the complainant if the transaction is not shown as honest and bonafide. I do not find any reason to interfere with the acquittal granted in favour of the accused. The Criminal Appeal is dismissed. S.S.SATHEESACHANDRAN, JUDGE vgs. Crl.A.No.194/02 6 S.S.SATHEESACHANDRAN,J ------------------------------ Crl.A.no.194 of 2002 ------------------------------ JUDGMENT 18.3.2009