IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 1120 of 2003() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRL.L.P.92/2003 Dated 20/06/2003 ST.40/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM ............................................................................................. APPELLANT(S): COMPLAINANT: --------------------------------------------- S. NADARAJAN, S/O. SATHYANESAN, U.P.IX/769, "STAR BHAVAN", SANTHI NAGAR, SREEKARIYAM, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT(S): ------------------------ 1. N. DEVARAJAN, S/O. NARAYANAN, PROPRIETOR, SOUTH WEST TRAVEL & TRADE LINKS, PRATHIBHA, T.C.24/724, METTUKADA JUNCTION, THYCADU, THIRUVANANTHAPURAM AND RESIDING AT T.C.43/992, PARUTHIKUZHI, MANACAUD, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.VELLAYANI ROBINSON FOR R1 SRI.VELLAYANI SUNDARARAJU FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1120 OF 2003 -------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal in S.T.40/2000 of the Judicial First Class Magistrate Court – V, Trivandrum. It is the case of the complainant that the accused had borrowed a sum of Rs.50,000/- and towards the discharge of the liability he had issued a cheque bearing the date 7.3.1996, which when presented for encashment returned with an endorsement of `insufficiency of funds'. After sending a statutory notice, prosecution has been launched. The defence appears to be that the complainant was an employee under the accused as a Manager and he used to keep signed cheques and one of such cheques had been misused for filing the case. In the Trial Court, PW1 and Dws. 1 and 2 are examined and Exts.P1 to P5 and D1 to D7 were marked. On analysis of the materials, the Trial Court found the accused not guilty and acquitted him u/s.255(1) of Cr.P.C. It is against that decision CRL.A.No.1120 OF 2003 2 the complainant has come up in appeal. The point that arises for determination is, 1. Whether the Trial Court erred in finding the accused not guilty u/s.138 of Negotiable Instruments Act ? 2. Point No.1 :- Perused the records. According to the complainant the accused had borrowed a sum of Rs.50,000/- and had issued a cheque towards the discharge of the liability. It was dishonoured, which resulted in the prosecution. The accused on the other hand would contend that, the complainant was a Manager and he had misused the cheque which was kept in the office. The Trial Court found that, apparently there appears to be a correction in the date and year. The year 1995 had been changed to 1996 and there is no attestation or authentication regarding the correction and so there is material alteration which will make the Negotiable Instruments invalid u/s.87 of the Negotiable Instruments Act and therefore acquitted the accused. PW1 is the son of the complainant. The complainant is stated to be working abroad. The evidence of PW1, the son, can not be said to be totally satisfactory at all. A CRL.A.No.1120 OF 2003 3 reading of his evidence at the most would reveal that the witness was present at the time of borrowal of the amount. There is no evidence to show that the cheque was handed over on the day when the amount was borrowed. As the Trial Court had found alteration of cheque which on scrutiny convinces me that the year in the cheque has been altered. It is in a thick ink and the year `6' appears to be a corrected one. When such a doubt is raised, there is a duty on the complainant to satisfactorily explain the same. This has to be analysed in the backdrop of the evidence of Dws. 1 and 2 and their exhibits. DW1 deposed before the court that the complainant was his Manager. DW2 has also supported that version. It has also come out in evidence that DW1 has filed the complaint against PW1's father for removal of the cheque from his custody. So it was imperative on the part of the complainant to establish his case by convincing evidence. He does not mount the box at all under the pretence that he was working abroad. It has been held by the courts that, when a representative comes with the evidence in a matter either as a Power of Attorney holder or in any other CRL.A.No.1120 OF 2003 4 capacity, unless he is personally acquainted with the facts involved in the case, he can not be called as a competent witness to depose on the facts pleaded before the court. Here as I stated earlier, the evidence of PW1 is not reliable as he had no personal knowledge of the entire materials. Therefore his evidence does not inspire confidence. On the contra, the accused and the witness has mounted the box and had given evidence regarding the case pleaded by the accused. It appears to be more probable. So on account of the suspicion regarding the correction of the year in the cheque, which amounts to material alteration supplemented by the evidence of Dws. 1 and 2 showing that the transaction as pleaded by PW1, is not true. It has to be held that the order of acquittal passed by the Trial Court has to be confirmed. Therefore I find there is no merit in the appeal and therefore the Crl.appeal is dismissed. M.N.KRISHNAN, JUDGE ami.