IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 CRL.A.No. 68 of 2003() ---------------------- CC.719/1999 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT: --------------------------------------------------- M/S.INTEGRATED FINANCE COMPANY REPRESENTED BY P.PREM KUMAR, RECOVERY EXECUTIVE M/S.INTEGRATED FINANCE COMPANY LTD., THIRUVANANTHAPURAM BRANCH, KARIMPANAL STATUE AVENUE, STATUE, THIRUVANANTHAPURAM. BY ADVS. MR.M.BALAGOVINDAN, MR.P.M.JOSEPH. RESPONDENT(S): ACCUSED & STATE: ---------------------------------------------------------- 1. THOMAS GEORGE, T.C.5/1972, SREEKRISHNA LANE, KAWDIAR P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PROSECUTOR. R1 BY ADVS. MR.B.RAMAN PILLAI, MR.GEORGE PHILIP, MR.R.ANIL, MR.RAJU RADHAKRISHNAN, MR.ANIL K.MOHAMMED. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 68 OF 2003 = = = = = = = = = = = = = = = Dated this the 28th day of May, 2009. J U D G M E N T This appeal is preferred against the judgment of the Chief Judicial Magistrate Court, Thiruvananthapuram in C.C.719/99. It is the case of the complainant that the accused had issued a cheque for Rs.21,737/- towards the discharge of a liability which when presented for encashment was returned for insufficiency of funds. Notice though issued returned with the endorsement addressee left. Thereafter prosecution was initiated u/s 138 of the N.I.Act. 2. The trial court on appreciation of the materials found that Ext.P3 cheque is not proved to have been executed and further towards the discharge of any liability and therefore rejected the case of the complainant. It is against that decision the complainant has come up in appeal. Perused the records and heard the learned counsel of the respondent. Crl.A. 68 OF 2003 -2- 3. The point that arises for determination is whether there is anything to interfere with the decision rendered by the Court below. Point: 4. It is the case of the complainant that the accused towards the discharge of a liability had issued Ext.P3 cheque which had been dishonoured and repayment not made in spite of a notice. On the other hand, it is the case of the accused that he had not issued any such cheque towards the discharge of the liability. According to him his sister had purchased a vehicle under the hire purchase agreement from the complainant and at that time she had given 19 blank cheques and he had given 12 blank signed cheques. Making use of those cheques now action is initiated. 5. At this juncture it is desirable to refer to another case C.C.672/98 between the same complainant and the accused. It is also relating to a cheque which deals with respect to the hire purchase transaction. The cheque amount was for Rs.98,096/-. In that case PW1 was examined and he Crl.A. 68 OF 2003 -3- had deposed before Court that 36 blank cheques were obtained and he also categorically admitted the date, the name and the amount were all filled by the members of the staff of the Company, after it has been executed, at the time of sending it for encashment. Or in other words this answer suggests that the blank cheques had been converted into a real cheque and presented for encashment. The said version given by the witness is marked as D1 and D1(a) in this proceedings. D2 is the judgment in that case. There also it ended in acquittal on account of the fact that no proper cheque had been issued for discharge of the liability. Now when confronted with such a difficult situation the witness gives a go by to the story of blank cheque being given. It is true that a witness is entitled to give explanation for the different version given by him in a previous proceedings but it must be explained. Here, except for the mere change of version it is not supported by any materials or other evidence. So things are crystal clear that at the time of the transaction, namely hire purchase, blank cheques had been obtained and it Crl.A. 68 OF 2003 -4- had been used for the purpose of realising the amount by filling it and putting the date as and when they choose to do so. So this will not prove the execution of a proper cheque which can be used for encashment. The Court below has appreciated the matter only in the proper perspective and in that back drop rejected the claim. I do not find any ground which warrant interference with that decision. Therefore this appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 68 OF 2003 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 68 OF 2003 = = = = = = = = = = = J U D G M E N T 28th May, 2009