IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 CRL.A.No. 79 of 2003() --------------------------------- CC.145/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT --------------------------------------------- SEBASTIAN GEORGE, T.C. NO.3/453(1)T.K.D.ROAD, MUTTADA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR RESPONDENT(S): STATE & ACCUSED ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.PEERUMOHAMMED, SHEEBA MANZIL, T.C. 20/1052, KUNCHALUMOOD, KARAMANA P.O., THIRUVANANTHAPURAM DIST. R1 BY ADV. SRI.P.V.ANIL SRI.BASANT BALAJI SRI.M.DINESH R2 BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 79 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008 JUDGMENT This appeal arises from an order of acquittal. 2. The appellant is the complainant and 1st respondent is the accused. A complaint was filed by appellant alleging offence under section 138 of the Negotiable Instruments Act against the 1st respondent. Evidence was adduced on both sides. After analyzing the evidence, the trial court came to the conclusion that the case set up by the 1st respondent that the cheque was issued by him as security and not in discharge of the debt or other liability is acceptable and hence, offence under section 138 of the Act was not attracted. The 1st respondent was acquitted. 3. The learned counsel for the appellant contends that the court below went wrong in accepting the evidence of DWs.1 and 2 which is totally contradictory to each CRL 79/03 -2- other. It is also submitted that evidence given by Dws.1 and 2 is not consistent with the defence case set up while examined under section 313 Cr.P.C. It is also pointed out that the 1st respondent has a case that though Rs.20,000/- was borrowed from the appellant, he actually received only Rs.17,000/- after deducting the interest. But in his evidence he deposed that he was paid Rs.20,000/-. 4. According to the prosecution, the 1st respondent borrowed Rs.20,000/- from the appellant on 11-6-1999 and on demand, he issued a cheque Ext.P1 on 11-8-1999 in discharge of the said debt and when the cheque was presented for encashment, the cheque was dishonoured. Even though notice was issued demanding payment, the amount was not paid within the stipulated time and hence the complaint was filed. 5. To prove the prosecution case PW1 was examined and Exts.P1 to P6 were marked. On the side of the defence, DWs.1 and 2 were examined. The 1st respondent contended that the appellant is a financier and he borrowed CRL 79/03 -3- Rs.20,000/- for meeting treatment expenses of his wife who died subsequently. It is also contended that the appellant paid only Rs.17,000/- deducting interest and the understanding was that Rs.200/- should be paid every day, in hundred instalments. The appellant also insisted for a cheque and other documents as security. A blank cheque was handed over to him and it was mis-used by him. 6. The court below found that the appellant had not given any satisfactory explanation regarding failure to take any security while advancing a loan of Rs.1,00,000/- to the 1st respondent. It was noted by the trial court that the appellant had no case that there was any strong bond or friendly tie or other relationship between the appellant and the 1st respondent, justifying advancement of a loan of Rs.1,00,000/-. It was also noticed that the appellant had no case that the writings in the disputed cheque was made by the 1st respondent. 7. It is only reasonable to hold that a person who advances huge amount of Rs.1,00,000/- to a person with CRL 79/03 -4- whom there is no close relationship, may take some security. It is only probable that a lender will take some surety or document to ensure the realization of the amount. But the appellant did not give any explanation when he was cross-examined, why he paid the amount without taking any document. It is also brought out from the evidence that it is not specifically stated in the lawyer notice issued to the 1st respondent that the amount was borrowed from the appellant by the 1st respondent or that he advanced the amount to the 1st respondent. 8. Taking all these facts into consideration the court below disbelieved the evidence given by the appellant that a loan of Rs.1,00,000/- was taken by the 1st respondent from him under the circumstances stated by him as PW1. In any criminal prosecution case, the burden is on the prosecution to prove its case beyond reasonable doubt. But, prosecution has not proved existence of any liability. The case set up by the 1st respondent that he had taken some loan from the appellant who is a financier and towards repayment of the CRL 79/03 -5- amount, the appellant insisted for handing over a cheque etc. appears to be probable, especially in the evidence given by DWs.1 and 2. 9. The circumstances under which Ext.P1 happened to be in the hands of the appellant are probabilised by the evidence of DWs.1 and 2. It appears from the evidence that the cheque was handed over to appellant not under the circumstances stated by the appellant. In the circumstances, I find no reason to set aside the findings of the trial court. It is well settled that in an appeal against acquittal interference can be made only in exceptional circumstances . I do not find any exceptional circumstance to intervene. Hence, the appeal is dismissed. K. HEMA, JUDGE. mn. CRL 79/03 -6- K.HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A. 79 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 7TH MARCH,2008