IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRL.A.No. 1539 of 2003(C) ------------------------ CC.330/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANT/COMPLAINANT : ----------------------------- V.SAMUEL, THOPPUVILAYIL, KULANADA MURI, KULANADA VILLAGE. BY ADV. SMT.S.K.DEVI RESPONDENTS/ACCUSED & STATE : -------------------------------------- 1. CHOICE READYMADE CENTRE, CHENGANNUR REPRESENTED BY GEORGE ALEX, MANAGING PARTNER. 2. GEORGE ALEX, MANAGING PARTNER CHOICE READYMADE CENTRE, CHENGANNUR, (KANCHONIL PUTHENVEEDU. VENMANI P.O) 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR, SRI. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1539 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April 2008 JUDGMENT The complainant in a prosecution under Section 138 of the Negotiable Instruments Act has preferred this appeal against the order of acquittal passed by the trial court. 2. The learned Magistrate, while holding respondents 1 and 2/ accused not guilty, held that the complainant had failed to prove that Ext.P1 cheque was supported by consideration. It was also held that the accused had successfully rebutted the presumption available to the complainant/drawee under Section 139 of the Act. 3. The case of the complainant, who was examined as PW1, was that accused No.2, who was the Managing Partner of accused No.1/firm, had borrowed Rs.1,75,000/- from him. In discharge of the said debt, Ext.P1 cheque was issued by accused No.2 which on presentation was dishonoured due to insufficiency of funds in the account of the accused. Though statutory demand notices were issued, the accused did not pay off the liability. Crl.A.No.1539 OF 2003 :: 2 :: Hence the complaint. 4. In his deposition, the accused who was examined as DW1 deposed that he was a subscriber of chitty conducted by the complainant under the name and style of Merchant's Benevolent Fund. He had successfully bid in the chit after two months. At the time when the prize amount was disbursed to him, the complainant had demanded for a signed blank cheque as security. According to the accused, he had paid off the entire liability under the chit. Ext.D1 passbook clearly indicated that the accused had paid Rs.400/- per day. It was also revealed from Ext.D1 that the accused had paid 237 instalments. 5. As rightly noticed by the learned Magistrate, the complainant had admitted that he had been conducting the above chitty business. But according to him, he had not received any signed blank cheque from the accused in connection with that transaction. The complainant further contended that he never used to receive any security or document from his subscribers when they were paid the chitty amount after bid. The learned Magistrate did not believe the above assertion made by the Crl.A.No.1539 OF 2003 :: 3 :: complainant and rightly, in my view. It cannot be believed that any establishment which conducts chitty business would disburse the prize amount to the successful subscriber/bidder without obtaining any acknowledgment or receipt. The learned Magistrate found that the defence set up by the accused was more probable and believable. Having heard learned counsel for the appellant and having perused the depositions of the parties and the documents produced by them, I do not find any reason to interfere with the order of acquittal passed by the court below. There is no merit in the appeal. It is accordingly dismissed. (A.K.BASHEER, JUDGE) jes