IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 CRL.A.No. 1696 of 2003 --------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.423/2003 Dated 08/10/2003 ST.4275/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... APPELLANT: COMPLAINANT. ------------------------------ V.V.VENUGOPAL, SECRETARY, PERINTHALMANNA RURAL HOUSING, CO-OPERATIVE SOCIETY LTD., PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.WILSON URMESE RESPONDENTS: ACCUSED AND STATE. ------------------------------------------- 1. THOLOPORU ASHRAF, S/O.MUHAMMED, KONDI PARAMBU PO., THACHIANANGADU. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.SAMSUDIN R2 BY PUBLIC PROSECUTOR SMT LAKSHMI RANI K.L THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ------------------------------------------------- Crl. Appeal No 1696 of 2003 ------------------------------------------------- Dated this the 15th September 2008 JUDGMENT This appeal is preferred by the complainant in S.T. Case No 4275 of 1997 on the file of the Judicial First Class Magistrate I, Perinthalmanna challenging the order of acquittal passed by the court below as per judgment dated 22.02.2003. 2. P.W.1, Secretary of Perintalmanna Rural Housing Co- operative Society Limitted, is the complainant. Accused was a member of the Society and he availed of a loan of Rs 35,000/- for constructing a house, but failed to repay the loan amount and the complaint filed ARC 940/96-97 which was decreed in favour of the complainant. Ext P1 is a copy of the award as per which the liability of the accused is fixed as Rs 39,235.80. It is the further case of the complainant that in order to discharge that debt accused issued Ext P2 cheque for a sum of Rs 39,235.80 drawn on the Pattikad Service Co-oiperative Bank Limited and when it was presented for encashment before the Malappuram District Co-operative Bank the same was returned by the drawee Bank with the endorsement “funds CrlA.No 1696/03 2 insufficient”. On receiving Ext P3 memo P.W.1 sent a lawyer notice calling upon the accused to pay the amount to which there was no response from the accused. Thereafter formal complaint was filed on the basis of which cognizance was taken by the court below. When the accused appeared before the court below particulars of the charge were read over and explained to him to which he pleaded not guilty. Consequently trial was proceeded. P.W.1 was examined on the side of the complainant and Exts P1 to P5 were marked as documentary evidence. Specific stand taken by the accused at the time of trial is that at the time of paying the third instalment of the loan amount, the complaint Board demanded a cheque and for giving a cheque the accused opened a new account at the Pattikad Service Co-operative Bank and on that day itself the cheque was given. It is also the case of the accused that his property was already attached by the complainant Society. To prove the case of the accused he himself was examined as D.W.1. After elaborate consideration of the materials and evidence the court below came to the conclusion that the accused had discharged his liability and that no offence under Section 138 of the Negotiable Instruments Act would lie against the accused. The court below thus found the accused not guilty and he CrlA.No 1696/03 3 was acquitted. The above order of acquittal is challenged in this appeal. 3. I have heard the counsel for the appellant and perused the evidence and materials available on record. The transaction alleged by the complainant has been admitted. It is the further case of the defence that the cheque in question was issued at the time of realisation of the third instalment of ;the loan and for that purpose he had opened an account with Pattikad Service Co-operative Bank and on that day itself the cheque in question was given. The court below after appreciating the entire evidence found that the house and the property of the accused was sold in auction after obtaining an award from the ARC and the complainant Society took the property in auction. It was also found by the court below that the complainant has no case that after taking the property in auction there is anything balance towards the housing loan availed of by the accused. The court below also found that from the evidence it could be seen that by selling the property of the accused the entire amount due to the Board had been recovered. The evidence of D.W.1 and Exts D1 and D2 would prove that the accused opened an account for giving Ext P2 cheque to the Housing Board. The evidence of P.W.1 would CrlA.No 1696/03 4 clearly show that the accused discharged his liability. The only point urged by the complainant before the court below is that even after the execution of the order of the civil court the accused is liable for offence under Section 138 of the Negotiable Instruments Act. Rejecting the above contention the court below found that liability of the appellant is over by selling his property. Learned counsel for the appellant submitted that the above finding of the court below is not supported by any evidence. But the learned counsel failed to point out any evidence adduced by the complainant against the above finding of the court below. After all this is an appeal against an order of acquittal. It is a case where, as already found by the court below, the liability has already been discharged by the accused, that too at the instance of the complainant by selling the property in auction. It has also come out in evidence that it is not in controversy that Ext P2 cheque was issued by the accused even before the entire loan amount was released, but particularly at the time of releasing the third instalment. It is for that purpose only he had opened an account and on which date itself cheque was given to the complainant. The above facts cast a doubt regarding the genuineness of the prosecution case as such. However the court CrlA.No 1696/03 5 below after elaborately considering the materials on record came to the conclusion that the accused had discharged his liability and therefore no offence under Section 138 of the N.I Act would lie. No ground is made out to interfere with the order of acquittal passed by the court below. Therefore the appeal is devoid of any merit and the same deserves to be dismissed. In the result, the appeal is dismissed as devoid of any merit. Sd/- V.K. MOHANAN Judge 15/09/2008 en [true copy]