IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 CRL.A.No. 132 of 2002 ------------------------------------ CC.599/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT/COMPLAINANT: A.V. GOVINDAN, S/O. KUNHIRAMAN, AGED 57 YEARS, BUSINESS, C/O. PEOPLES LIGHT HOUSE, KOTTY, PAYYANNUR P.O., TALIPARAMBA TALUK. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS/ACCUSED: 1. K.V. PRABHAKARAN, S/O. K.V. LAKSHMI, KALATHIL VEETTIL, KANNAMKAI, P.O. PILICODE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. STATE OF KERALA, REPRESENTD BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN SRI.O.V.MANIPRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 132 of 2002 --------------------------- JUDGMENT This appeal with leave is filed by the complainant in C.C.No.599/98 on the file of the Judicial First Class Magistrate's Court, Payyannur. The complaint was that the first respondent borrowed an amount of Rs.10,000/- from the appellant on 5.6.1998 and to ensure repayment, he issued Exhibit P1 cheque dated 15.6.1998, drawn on Pilikode Service Co-operative Bank and on presentation of the cheque it was dishonoured assigning the reason “funds insufficient” and consequently Exhibit P3 notice was caused to be issued through Lawyer informing the first respondent of the dishonour of the cheque and demanding payment of the amount covered by the cheque, but, the said notice was returned unclaimed and no payment has been made by the first respondent either within the statutory period or ever thereafter and thus, the first respondent has CRA 132/02 2 committed an offence punishable under Section 138 of the Negotiable Instruments Act. 2. On the side of the appellant, PW1 was examined and Exhibits P1 to P3(b) were marked. On the appellant closing his evidence, the first respondent was questioned by the learned Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. On the defence side DW1 was examined. 3. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid, found that Exhibit P1 cheque is not shown to be one issued in discharge of any debt, held that the first respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitted him of the said offence. Hence this appeal by the aggrieved appellant. CRA 132/02 3 4. It is contended before me by the learned counsel for the appellant that execution of Exhibit P1 cheque stands proved by the formal evidence furnished by the appellant as PW1 and that therefore, the presumption available under Section 139 of the Negotiable instruments Act in favour of the appellant, who is the payee and holder under the cheque, should have been found to prove the case of the appellant and the first respondent should have been found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. 5. The case of the appellant is that Exhibit P1 cheque dated 15.6.1998 was issued by the first respondent to ensure repayment, when an amount of Rs.10,000/- was advanced to him by the appellant on 5.6.1998. According to the appellant, while borrowing the money, the first respondent had stated that he will not be in station on 15.6.1998 and it was therefore that he issued the cheque. In CRA 132/02 4 cross-examination, the appellant, as PW1, stated that money was paid at his shop at Payyannur. The appellant is one, who is running a shop under the name and style of Lights and Sounds. 6. The defence suggestion to the appellant is that the son of the complainant entrusted 1000 copies of an audio cassette of devotional songs to the first respondent, who agreed to sell it and an amount of Rs.42,000/- was paid by the first respondent. However, as the cassettes were not provided in time, an amount of Rs.10,000/- was repaid to the first respondent, but the cassettes remained with the first respondent and therefore, to ensure payment on account of those cassettes, two blank cheque leaves were obtained from the first respondent, of which, one is misused to bring into existence Exhibit P1 cheque. 7. The first respondent examined DW1 to substantiate his contention which, however, was denied by the appellant. However, the appellant CRA 132/02 5 admitted that he has filed another case also against the first respondent as C.C.No.600/98 in relation to Rs.7,500/- lent to the first respondent/accused on 1.6.1998. This means that prior to advancing of Rs.10,000/- on 5.6.1998, as per the appellant's case, he had, on 1.6.1998, advanced an amount of Rs.7,500/- to the first respondent. It is not in the natural course of dealings that the appellant would advance a further amount of Rs.10,000/- when, already, an amount of Rs.7,500/- had been advanced four days back. Apart from that, the appellant, as PW1, though deposed that the first respondent filled up and signed the cheque in his presence, he has changed this stand in re-examination and stated that the first respondent only signed the cheque in his presence and he had not noticed as to whether the cheque was being filled up by the first respondent. He also admitted that his son is owning a cassette shop and there was transaction between his son and the first CRA 132/02 6 respondent. This admission by PW1, as rightly observed by the learned Magistrate, lends support to the contentions of the first respondent. The contention raised by the first respondent, in the circumstances, is probable and the preponderance of probabilities, in the nature of the said evidence, rebuts the presumption available in favour of the appellant, the payee and holder of the cheque under Section 139 of the Negotiable Instruments Act. The contention that no reply had been issued to the notice and therefore, it has to be presumed that the first respondent has issued Exhibit P1 cheque in discharge of debt due to the appellant is not tenable in the circumstances of this case, as the notice was being returned unclaimed and there is no evidence to show that the first respondent was aware that exhibit P3 had been tendered at his residence or that Exhibit P3 was in relation to the dishonour of Exhibit P1 cheque. Thus, I see no merit in this appeal, as I am of the view that the CRA 132/02 7 finding that there is no convincing evidence in the case that Exhibit P1 cheque is issued in discharge of any debt as alleged has only to be confirmed. This appeal, in the circumstances, deserves only to be dismissed confirming the acquittal of the first respondent under Section 255(1) Cr.P.C. In the result, I dismiss this criminal appeal. 18th January, 2008 (K.P.Balachandran, Judge) tkv CRA 132/02 8 K.P.Balachandran, J. --------------------- Crl.A.No.132 of 2002 --------------------- JUDGMENT 18th January, 2008