IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 CRL.A.No. 1351 of 2003() ------------------------ AGAINST THE JUDGEMENT in CC.883/1999 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... APPELLANT: -------------- MADHU THAYYIL, S/O.NARAYANANKUTTY, 13/478, MANJU VIHAR, AYYANTHOLE, THRISSUR – 3. BY ADV. SRI.M.B.PRAJITH RESPONDENTS: --------------- 1. BINDU, D/O.CHANDRAN, CHERAMPARAMBIL HOUSE, PORATHISSERY, IRINJALAKUDA NORTH P.O. THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.M.KRISHNAKUMAR FOR R1 SMT.P.R.REENA FOR R1 PUBLIC PROSECUTOR, SRI.NOUSHAD THOTTATHIL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------- Crl.A.No.1351 OF 2003 ----------------------------- Dated this the 30th day of November, 2011 J U D G M E N T ~~~~~~~ This is an appeal preferred by the complainant in C.C.No.883/1999 on the file of the Judicial Magistrate of the 1st Class-III, Thrissur against the judgment of acquittal. 2. The appellant herein prosecuted the 1st respondent alleging offence under Section 138 of the Negotiable Instruments Act with a plea that the 1st respondent owed a sum of Rs.20,000/-, for the discharge of which, Ext.P1 cheque dated 26.11.1998 was issued and that when presented for collection it was returned dishonoured for insufficient funds and despite the demand notice, the liability was not discharged. 3. The 1st respondent pleaded not guilty, when the particulars of the offence was read over and explained. Therefore, she was sent for trial. The appellant was examined as PW1. Exts.P1 to P7 were marked. After closing the evidence for the prosecution, the 1st respondent was questioned under Section 313 of the Code of Criminal Procedure. She took a Crl.A.No.1351/2003 2 defence that the appellant was the Managing Director of Harichandra Kuri and that the 1st respondent was a subscriber of the Kuri and that in the Kuri transaction, a blank cheque was issued as a security and that misusing that blank cheque the prosecution was launched. On the side of the 1st respondent, DWs 1 and 2, two Medical Officers attached to the Modern Hosptial, Kodungalloor, were examined. The 1st respondent was examined as DW3. Exts.D1 to D9 were marked. The learned Magistrate, on appraisal of the evidence, arrived at a finding that as on the date of cheque, as evidenced by Exts.D1 to D4, the 1st respondent was in the advanced stage of pregnancy and was admitted in the hospital as deposed by DWs 1 and 2. Therefore, the story of the appellant was disbelieved. Consequently, the 1st respondent was acquitted. Now, this appeal. 4. Going by the evidence on record and the judgment of the court below, I find that the specific case of the appellant was that cheque was issued on 26.11.1998. The evidence of DWs 1 and 2 coupled with Exts.D1 to D4 would show that the Crl.A.No.1351/2003 3 1st respondent was hospitalised from 15.11.1998 to 28.11.1998 and that she was in the advanced stage of pregnancy. During the trial, the appellant had advanced a new case that the cheque was issued on 15.11.1998 with date 26.11.1998. It was not supported by any pleadings. Ext.P3 is the copy of the lawyer notice. In Ext.P3, it is stated that the 1st respondent issued the cheque dated 26.11.1998 at the house of the appellant. There is no case that the cheque was issued on 15.11.1998. The evidence of DWs 1 and 2, who are medical officers, supported by Exts.D1 to D4, that the 1st respondent was in advanced stage of pregnancy and was hospitalised from 15.11.1998 to 28.11.1998, remains unimpeached. It is in the above circumstance, the lower court disbelieved the prosecution case. It is also seen by Ext.D3 and the evidence of DW2 that the 1st respondent was earlier hospitalised from 7.11.1998 to 11.11.1998. Thereafter, again she was admitted on 16.11.1998 and discharged on 28.11.1998. Such being the physical condition of the 1st respondent, the story that the 1st respondent went to the house of the appellant on 15.11.1998 and executed Ext.P1 is not at all believable. I find no reason to arrive at a divergent conclusion. The learned Crl.A.No.1351/2003 4 Magistrate has not at all erred in appreciating the evidence. The 1st respondent was rightly acquitted. The acquittal requires no interference. The appeal is devoid of merits. In the result, the appeal fails. It is dismissed. (P.S.GOPINATHAN, JUDGE) ps/1/12