IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 CRL.A.No. 1189 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.181/2003 Dated 20/07/2003 CC.59/1999 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... APPELLANT: COMPLAINANT: ----------------------- KOONTHAMATTATHIL FINANCES, KOONTHAMATTATHIL BUILDINGS, M.C.ROAD, MONIPALLY, REPRESENTED BY ITS MANAGING PARTNER,STEPHEN THOMAS BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: STATE AND ACCUSED: ------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KRISHNAKUMAR M.J., MINIMALAIYACKAL HOUSE, THOTTAKAOM P.O., VAIKOM. BY ADV. SRI.T.RAJESH - R2. PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A No. 1189 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of January, 2008. Judgment Appellant is the complainant in a prosecution under section 138 of the Negotiable Instruments Act. The appeal is directed against the judgment of acquittal passed by the trial court holding respondent No.2/accused not guilty. 2. It is contended by learned counsel for the appellant/complainant that the learned Magistrate was not justified in holding that Ext.P2 cheque was not supported by any consideration and that it was not issued by the accused in discharge of any legally recoverable debt or liability. 3. The case of the complainant who was stated to be the Managing Partner of a finance company engaged in the business of hire purchase, was that the Company had advanced money to the accused in respect of his vehicle bearing registration No.KRH 9131. The accused had committed default in payment of monthly instalments of hire charges. Consequently the bus was seized by the complainant. Later, the vehicle was released to the accused on his undertaking to pay the entire arrears till that date. On that occasion the accused had issued Ext.P2 cheque for a sum of Rs.82,000/- which was the amount found due at the time of release of the bus. But when the cheque was presented for encashment it was Crl.A.1189/2003. 2 dishonoured due to insufficiency of funds in the account of the accused. Though Ext.P5 statutory notice was issued demanding payment, the accused failed to discharge the debt. No reply was also sent to the notice. It was therefore that the accused was prosecuted for the offence punishable under Section 138 of the Act. 4. The complainant was examined as PW.1 and Exts.P1 to P9 were marked on his side. Dws.1 to 3 were examined and Exts.D1 to D8 were marked on the side of the defence. The learned Magistrate after an elaborate consideration of the oral and documentary evidence on record found that the appellant/complainant had failed to establish his case. The learned Magistrate noticed that the complainant had an inconsistent case with regard to the money advanced to the accused. It had come out in evidence that two civil suits were filed, one by the complainant himself and yet another by his brother, against the accused and another for realisation of some amounts. Of course the two suits were filed on the basis of two promissory notes. While in the suit filed by the complainant against the accused and another the claim was for Rs.68,000/=, in the other suit filed by the complainant's brother, the amount sought to be recovered was Rs.90,000/= . It had further come out in evidence that complainant's brother was also a partner in the finance company. The specific case of the accused before the trial court was that the complainant had misused the blank signed cheque handed over by him to the complainant at the time of availing hire purchase facility from the finance company. 5. It is pertinent to note that in cross-examination, the Crl.A.1189/2003. 3 complainant had admitted that he had advanced a sum of Rs.68,000/= at the time of execution of the hire purchase agreement. The said amount was admittedly sought to be recovered by the complainant's brother Sri.Josep Thomas in the suit filed by him before the Munsiff Court, Pala. It is true that the above suit was based on a promissory note allegedly executed by the accused on July 30, 1996. A true photocopy of the said promissory note which was produced by the plaintiff in the suit along with the plaint before the Munsiff Court was on record as Ext.D5. 6. The complainant had instituted a suit before the Subordinate Judge's Court, Pala as OS.No.54/1999 based on a promissory note allegedly executed by the accused and another on June 30, 1996. A copy of the said promissory note was produced before the trial court as Ext.D3. A perusal of Ext.D3 and D5 will undoubtedly show that they are exactly identical. The entries in those promissory notes also appear to have been typed by the same typewriter. As mentioned earlier, Pw.1 in his deposition had admitted that two suits had been instituted against the accused in connection with the hire purchase transaction between the company and the accused. The learned Magistrate had also noticed that the entires in Ext.P2 cheque were also typewritten, which cast a suspicion in the mind of the court. Learned Magistrate took the view that the case of the accused is more probable and trustworthy. 7. Having heard learned counsel for the parties and having perused the entire materials on record, I do not find any reason to take a different view. Learned Magistrate was, in my view, justified in Crl.A.1189/2003. 4 holding that complainant had failed to establish his case. No interference is warranted in the judgment of acquittal which has been impugned in this appeal. The appeal fails and it is accordingly dismissed. A.K. Basheer Judge. an.