IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 CRL.A.No. 6 of 2001 CC.88/1998 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... APPELLANT/COMPLAINANT/PETITIONER: M/S ASLAM FINANCIAL AND INVESTMENT CO. PVT. LIMITED INDUS AVENUE, KALLAI ROAD CALICUT 673002, REP. BY ITS FIELD INSPECTOR P.P.MOIDEENKOYA, S/O P. ABOOBACKER BY ADV. SRI.A.A.ABUL HASSAN RESPONDENT/ACCUSED: V.P.PREMKUMAR S/O V.P.VELAYUDHAN 'VIOLET', DHARMADAM, THALASSERY BY ADV. SRI.K.A.SALIL NARAYANAN PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON 08/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.6 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February 2008 JUDGMENT The complainant in a private complaint has preferred this appeal against the judgment of acquittal passed by the trial court holding that the complainant had not substantiated the charge under Section 420 IPC against respondent/accused. 2. The case of the complainant before the trial court was that he was the Field Inspector of M/S Aslam Financial and Investment Company Private Limited. The accused had entered into a hire purchase agreement with the complainant on September 15, 1997 under which several items of furniture, embroidery machine, sewing machine, etc. were entrusted to the accused. In the said hire purchase agreement, the accused had undertaken to pay the hire value in monthly instalments. But the accused committed default in payment of the monthly instalments and a total sum of Rs.33,000/- fell due from him. In discharge of the said debt, the accused had issued a cheque drawn on his account maintained in Dharmadam Service Co- operative Bank Limited at Dharmadam in Kannur district. But Crl.A.No.6 OF 2001 :: 2 :: when the cheque was presented for encashment, it was dishonoured with the endorsement “Drawer's signature differs and funds insufficient”. Though a statutory notice was issued to the accused demanding payment, he had failed to discharge the debt. Hence the complaint, alleging commission of the offence punishable under Section 138 of the N.I. Act and also under Section 420 IPC. 3. It is the admitted position that the learned Magistrate took cognizance of the offence under Section 420 IPC only and not of the offence under Section 138 of the N.I.Act. The complainant got himself examined as PW1. The cashier/clerk of the company was examined as PW2. The manager of Darmadam Service Co-operative Bank was examined as PW3. Exts.P1 to P14 were also marked on the side of the complainant. There was no oral or documentary evidence on the side of the defence. 4. The learned Magistrate, after an elaborate consideration of the oral or documentary evidence on record, held that the complainant had failed to prove that the accused had committed the offence punishable under Section 420 IPC. Accordingly, the Crl.A.No.6 OF 2001 :: 3 :: accused was acquitted. 5. It is contended by Sri.Abul Hassan, learned counsel for the appellant/complainant that the evidence on record had clearly established the charge levelled against the accused. It is also contended by the learned counsel that even assuming the charge under Section 420 IPC had not been satisfactorily proved or established, the court below ought to have altered the charge appropriately, since the offence of forgery had been clearly made out or proved from the evidence adduced by the complainant. 6. Learned counsel points out that the accused had executed and handed over Ext.P1 cheque to the complainant making him believe that it was a valid negotiable instrument drawn from his own account and for the discharge of the liability which the accused owed to the complainant. 7. Learned counsel has taken me through the evidence of PW1 elaborately. But it is seen from the deposition of PW1 that his case was that the accused had borrowed a sum of Rs.30,000/- from him on the strength of a hire purchase agreement. But his case in the complaint was that he had entrusted or delivered Crl.A.No.6 OF 2001 :: 4 :: various items of furniture, embroidery machine, sewing machine, etc. to the accused mentioned in the hire purchase agreement. At the time of taking delivery of the items, the accused had agreed to pay the hire value in monthly instalment. Thus, there is a marked variation in the case of the complainant in the complaint and his deposition in the court. 8. In this context, the evidence of PW2 the Cashier/Clerk of the company is pertinent. PW2 stated that the accused had submitted Ext.P9 application for a loan (Ext.P9) of Rs.30,000/-. According to PW2, the accused was given a cheque for Rs.30,000/-. The voucher issued by the accused on receipt of the above sum through cheque was also marked as Ext.P10. It is therefore evident that the complainant had failed to project a consistent case before the trial court. 9. The next question that may arise for consideration is whether the ingredients of Section 420 IPC had been made out at all. I am afraid the answer to the above question can be only in the negative. First of all, it has been noticed that the complainant and the accused had entered into a written Crl.A.No.6 OF 2001 :: 5 :: agreement. The parties would be naturally bound by the terms and conditions in the agreement. Even if one of the two contracting parties commits breach, appropriate remedy is always available to the other party before a competent civil court. 10. Having gone through the evidence of PW1 and the averments in the complaint, I do not find any reason to accept the contention of the learned counsel for the complainant that sufficient materials had been placed before the court to show that the accused had cheated the complainant. In this context, it may also be pertinent to note that the complainant had no case that he was induced to part with any property on the strength of any promise or assurance made by the accused and that too wish an intention to cheat with an intention to cheat. Such an averment is conspicuously absent both in the complaint and in the depositions of PW1. In that view of the matter also, I am satisfied that the evidence adduced by the complainant is not at all sufficient to hold that ingredients of the offence under Section 420 IPC had been attracted. Crl.A.No.6 OF 2001 :: 6 :: 11. The other contention raised on behalf of the complainant is that the court below ought to have altered the charge appropriately. Learned counsel contends that ingredients of the offence under Section 465 and 468 had been clearly made out against the accused. I am afraid the above contention is also wholly misconceived and untenable. Having perused the entire materials on record, I am unable to accept any of the contentions raised by the complainant. In my view, the court below had entered a correct finding after considering the entire materials available on record. I do not find any reason to interfere with the said finding. There is no merit in the appeal. It is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.A.No.6 OF 2001 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.6 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 8th Feb. 2008