IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 CRL.A.No. 1766 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.210/2003 Dated 14/02/2003 CC.380/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT/COMPLAINANT: ---------------------------------------- JOHNSON S/O. CHEERAN ITTOOP KUNNAMKULAM, PATTAMBI ROAD KUNNAMKULAM. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ SRI.V.R.DHEERAJ RESPONDENTS/ACCUSED & STATE: -------------------------------------------------- 1. C.C. MOHANAN, S/O. CHACKO CHERUVATHUR HOUSE, PATTAMBI ROAD, P.O. KUNNAMKULAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON 20/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1766 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 380 of 1998 on the file of the Judicial First Class Magistrate Court, Kunnamkulam. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. Towards repayment of the loan taken by the first respondent/accused from the appellant/complainant, a cheque dt.11.1.1997 for Rs.35,000/- drawn on the South Indian Bank, Kunnamkulam branch was issued in favour of the appellant by the first respondent. The said cheque was presented before the Federal Bank, Kunnamkulam. It was dishonoured, vide memo dt.17.1.1998, with an endorsement 'funds insufficient'. Crl.A. No. 1766 of 2003 2 Thereupon the appellant issued Ext.P4 lawyer notice dt.27.1.1998 to the accused demanding payment of the amount covered by Ext.P1 cheque. Eventhough the notice was served on the accused on 28.1.1998, he did not send any reply and also failed to pay the amount to the appellant. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the defence side, Exts.D1 and D2 were marked. The learned Magistrate, on considering the evidence, found that the complainant has failed to establish that Ext.P1 cheque was issued in discharge of a legally enforceable debt and the accused was found not guilty 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 Public Prosecutor. 5. The learned counsel for the appellant submitted that Exts.D1 and D2 documents are fabricated by the accused with deliberate Crl.A. No. 1766 of 2003 3 intention to escape from penal liability. The learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and as such the learned Magistrate is not justified in acquitting the accused. 6. When the accused was questioned under Section 313 Cr.P.C., he denied the entire allegations raised against him by the complainant. According to him, he had taken a loan of Rs.10,000/- from Sun Finance, in which PW1/complainant is a Partner. The entire amount has been repaid by him. At the time of borrowal of the amount, he had given a blank cheque as security. The complainant had misused the cheque issued by the accused. 7. The complainant was examined as PW1. He deposed that on 10.11.1997 the accused borrowed Rs.35,000/- from him agreeing to repay the amount within one month. When he demanded back the amount, the accused gave Ext.P1 cheque. When PW1 presented that cheque for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P2 is the dishonour memo. Crl.A. No. 1766 of 2003 4 PW1 sent a lawyer notice to the accused, intimating the dishonour of the cheque and demanding the amount. Ext.P4 is the copy of the lawyer notice and Ext.P5 is the postal receipt. Ext.P6 is the postal acknowledgment. PW1 deposed that even after receipt of the lawyer notice, the accused did not repay any amount. 8. In cross examination he admitted that he was a Partner of Sun Finance and that firm is not working now. PW1 has no case that the accused executed Ext.P1 cheque in his presence. Ext.P1 cheque shows that the signature of the accused is put in blue ink, whereas the other entries are in black ink. The accused produced Exts.D1 and D2, which are cheques issued by the accused, which contain the admitted writings of the accused. On comparing the handwriting in Ext.P1 cheque with the admitted handwriting of the accused in Exts.D1 and D2, the learned Magistrate came to the conclusion that Ext.P1 cheque was not executed by the accused. Crl.A. No. 1766 of 2003 5 Since that finding is based on reasons recorded, I find no reason to interfere with that finding. 9. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm