IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 CRL.A.No. 1033 of 2001(D) ------------------------------------- CC.NO.53/1996 OF CHIEF JUDICIAL MAGISTRATE, KALPETTA, WAYANAD. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ N. GOPALAKRISHNAN, S/O. NARASIMHAN EMBRANTHIRI, THOTTAN VEEDU, VENGAPPILLI, KALPETTA. BY ADV. SRI.G.BALAMURALEEDHARAN, ADV. SRI.MATHEWS V.JACOB, ADV. SRI.N.T.NANDAKUMAR. RESPONDENT/ ACCUSED: ------------------------------------- 1. K. SHOUKATHALI, S/O. KUNJALIKUTTY, KANJIRALA, MOORIYATTIL, KASABA, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM FOR R2, ADV. SRI. SHOUKATHALI FOR R1. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1033 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of May, 2008. Judgment This appeal is directed against the order of acquittal passed by the trial court in a prosecution under Section 138 of the Negotiable Instruments Act. The trial court found that the complainant had not succeeded to prove that Ext.P1 cheque was issued in discharge of a legally enforceable debt or liability. 2. The case of the complainant in brief was that the accused had borrowed a sum of Rs.55,000/- from him and issued Ext.P1 cheque dated December 31, 1994 in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued by the complainant, it was refused to be claimed by the accused from the Post Office in spite of intimation given to him. 3. The complainant was examined as Pw.1 and Exts.P1 to P4 were marked on his side. There was no oral or documentary evidence on the side of the accused. The defence set up by the accused appeared to be that he had not borrowed any money from the complainant as alleged. The accused had had some timber transaction with the complainant. He had issued Ext.P1 cheque in connection with the said transaction as a security. 4. The learned Magistrate, after evaluation of the oral and documentary evidence on record, took the view that the complainant had not succeeded in proving that Ext.P1 cheque was issued in discharge of a legally enforceable debt or liability. In the course of his cross examination the complainant admitted that he had got acquainted with the accused in connection with some business. According to the complainant, the accused used to come to that locality in connection with his timber business. 5. It appears that the complainant had sold some timber trees to the accused. In the course of cross-examination it was specifically suggested to the complainant that there was some case in connection with cutting and removal of certain trees. But the complainant vehemently denied the suggestion that some trees could not be cut because of the stay order. Anyhow, the fact remained that there was some business transaction between the complainant and the accused. Significantly, the complainant did not advert to any such business transaction between him and the accused . What he had stated in the complaint was only that the accused owed a sum of Rs.55,000/- in connection with a transaction (------------). In the registered statutory demand notice (Ext.P3) also what had been stated by the complainant was that the accused owed the money in connection with a “transaction”. The learned Magistrate had kept in view all the above aspects of the matter while considering the question whether the case projected by the complainant was probable and believable as compared to the one advanced by the defence. The learned Magistrate had chosen to believe the case of the accused. 6. Having carefully perused the entire materials available on record, I do not find any compelling reason or circumstance, much less any legal error, to interfere with the order of acquittal passed by the court below. The learned Magistrate had the advantage of watching the demeanour of the complainant and the accused. In any view of the matter, I am not satisfied that any interference is warranted with the order of acquittal passed by the court below. The appeal fails and it is accordingly dismissed. A.K. Basheer Judge. an.