IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 CRL.A.No. 803 of 2002() ----------------------- CC.710/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT: COMPLAINANT: ------------------------------ K.U.VIJAYAN, AGED 42 YEARS, S/O. KUNHIKANNA PODUVAL, PARVATHI NIVAS, ANNUR P.O., PAYYANNUR. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ACCUSED/STATE: ------------------------------------- 1. C.V.HARIDASAN, AGED 44 YEARS, S/O. C.V.KUNHAMBU, LAVANYA JEWELLERS, DOOR NO.XXI-1916, EVEREST BUILDING, MAIN ROAD, PAYYANNUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:0 M.C.HARI RANI, J. ----------------------------------------------------- CRL.A.No.803 OF 2002 ----------------------------------------------------- DATED THIS THE 2ND DAY OF JUNE, 2009 J U D G M E N T Appellant is the complainant in C.C.No.710/98 on the file of the Court of J.F.C.M., Payyannur, which was filed under Section 138 of Negotiable Instruments Act. The trial court as per judgment dated 18.3.2002 has acquitted the accused under section 255(1) of Cr.P.C., which is challenged in this appeal. 2. The case of the complainant put forward in the complaint is that on 3.6.1998, the accused had borrowed an amount of Rs.1,50,000/- from the complainant with the promise to repay that amount within one month. The amount was not repaid, as agreed by the accused. He approached the accused on 3.7.1998 and demanded to repay the amount. Instead of repaying the amount, the accused issued Exhibit P1 cheque on 3.7.1998 drawn on Payyannur Co-operative Town Bank Limited, Main Branch, Payyannur, which when presented for collection was dishonoured on 6.7.1998 with a memo for the reason “exceeds arrangement”, ie; due to insufficiency of funds in the account of CRL.A.No.803/02 -2- the accused. After getting that intimation, the complainant issued lawyer notice on 20.7.1998 which was received by the accused on 22.7.1998, as revealed from Exhibit P4 copy of the notice and Exhibit P4(b) acknowledgement card. The accused neither send any reply nor repaid the amount and the complaint was filed by the complainant before the lower court. 3. On the side of the complainant/appellant, he was examined as PW1 and Exhibits P1 to P4(b) were marked. No defence evidence either oral or documentary has been adduced. After considering the evidence on record, both oral and documentary, the lower court acquitted the accused under section 255(1) of Cr.P.C., which is challenged in this appeal. 4. Though notice was served in person to the first respondent herein, the accused, he did not appear and there was no representation on his behalf. 5. Heard the learned counsel appearing for the complainant/appellant. Heard the learned Public Prosecutor appearing for the 2nd respondent, State of Kerala. 6. The learned counsel for the appellant has submitted that the lower court has found in favour of the appellant that all the ingredients CRL.A.No.803/02 -3- to file a complaint for an offence under Section 138 of Negotiable Instruments Act are clearly complied with by the complainant. It is admitted by the accused that the cheque, Exhibit P1 belongs to him which contains his signature. Then, it is for the the accused to rebut the presumption available to the complainant under Sections 118 and 139 of the Negotiable Instruments Act. That also has been found in favour of the appellant/complainant. But, the lower court has erroneously acquitted the accused with the finding that it is not proved that the accused has issued Exhibit P1 cheque to discharge a debt of Rs.1,50,000/- and that the complainant had not impressed that he had mobilised such a huge amount of Rs.1,50,000/- on 3.6.1998 to pay that amount on 3.6.1998 on the mere asking of a loan by the accused. The learned counsel vehemently argued that the execution of Exhibit P1 cheque has been admitted by the accused and that the accused though received the lawyer notice issued by the complainant on 20.7.1998, no reply has been sent by him. Thus, the accused has not availed the earlier opportunity to deny the liability due under the cheque, it is submitted. 7. The appellant/complainant has been examined before the lower court as PW1. In the complaint, the complainant has put CRL.A.No.803/02 -4- forward a case that there was transaction between him and the accused on 3.6.1998 and that Rs.1,50,000/- has been borrowed by the accused from the complainant on that day and the accused promised to repay that amount within one month. According to the complainant, that amount of Rs.1,50,000/- was readily available with him on that day, which was handed over by him to the accused, even without knowing the financial capacity of the accused to repay the same. According to the complainant/PW1, there was an earlier transaction between them about eight years back and Rs.25,000/- was borrowed by the accused and a cheque was handed over to him, which was returned to the accused when that amount was repaid to him. The defence of the accused as revealed from the cross-examination of PW1 is that an amount of Rs.5,000/- was borrowed by the accused from the complainant eight years back and that amount was repaid, but the cheque was not returned by the complainant which was manipulated by the complainant and the present complaint was filed against him. The accused has denied the transaction on 3.6.1998 as put forward by the complainant. In the complaint, it was specifically stated that amount was borrowed on 3.6.1998 and the cheque was issued subsequently after one month, ie; 3.7.1998. But, while in the CRL.A.No.803/02 -5- witness box, PW1 has stated that the entire transaction between them was on 3.6.1998 itself. Thus, PW1 has denied his own case in the complaint regarding the issuance of the cheque on 3.7.1998. That material contradiction has been considered by the lower court and has disbelieved the case of the complainant. 8. It is true that the accused has admitted that Exhibit P1 cheque belongs to him and it contains his signature. That does not mean that the entire transaction put forward by the complainant and the execution of the cheque as such has been admitted by the accused. The suggestions put to PW1 in cross-examination is to the effect that Rs.5,000/- was borrowed by the accused from the complainant about three years back. At that time, the complainant had obtained two blank cheques. Though the amount was repaid, the cheque was not returned, which was misused. All those suggestions were denied by PW1. So the point to be decided is regarding the source of Rs.1,50,000/- on 3.6.1998 with PW1 so as to handover the same to the accused on that day. To substantiate this, I have got the oral evidence of PW1 only. According to PW1, Rs.80,000/- was withdrawn by him from his account in the bank and Rs.40,000/- was borrowed from his friend Haroon. This can be proved by producing the CRL.A.No.803/02 -6- passbook and by examining Haroon, whose address is known to him as admitted. But, this was not done. Passbook was not produced and Haroon has not been examined for the reasons best known to PW1. So, also the case of the complainant that he has received Rs.30,000/- as commission towards brokerage for the purchase of a property by one Sankaran from One Narayanan Master whose address is known to the complainant were also not examined. Even according to PW1, Sankaran is available in his locality and Narayanan Master is at Bangalore. So, the denial of the accused with regard to that transaction between them and the source of that amount, etc. can be negatived by examining those witnesses and by producing the passbook or by examining the bank officials. No such attempt has been made by the complainant which has been elaborately dealt with by the lower court. Accordingly, the lower court has found that the case of the complainant as such cannot be believed and the circumstances of non-examination and non-production of the documents are enough for rebutting the presumption available in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act. The sole reason that no reply has been sent by the accused to the lawyer notice issued by the complainant CRL.A.No.803/02 -7- cannot be accepted as a ground to draw the presumption under sections 118 and 139 of the N.I.Act in favour of the complainant as correctly found by the lower court. In these circumstances, I find that no interference is required by this Court with regard to the finding of the lower court by which the accused was found not guilty and acquitted under Section 255(1) of Cr.P.C. 9. In the result, this appeal is dismissed. M.C.HARI RANI, JUDGE. dsn