IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 CRL.A.No. 2 of 2008 -------------------------------- CC.801/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA ................... APPELLANT/COMPLAINANT: K.C.THAMPI, S/O.CHACKO, AGED 40, NEDIYANIKUZHIYIL HOUSE, PIRAVOM DESOM, MUVATTUPUZHA. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENTS/ACCUSED & STATE: 1. SHRI.SAJI, S/O.MATHEW, AGED ABOUT 36, MALIKAYIL, KUNNAPPILLY DESOM, PERUVA P.O., KOTTAYAM DIST. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 2 of 2008 --------------------------- JUDGMENT The complainant in C.C.No.801/03 on the file of the Judicial First Class Magistrate's Court, Muvattupuzha is the appellant. He filed complaint against the first respondent, complaining of commission by him of an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate considered the case of the appellant, in the light of the evidence of PW1 and DWs 1 to 3 and documentary evidence Exhibits P1 to P15 and Exhibits D1 to D11, held that Exhibit P1 cheque is not one issued in discharge of any debt or other liability, found the first respondent/ accused not guilty of the offence and acquitted him of the offence under Section 138 of the Negotiable Instruments Act under Section 255(1) Cr.P.C. Hence the appeal. 2. It is contended before me by the learned counsel for the appellant that there was an CRA 2/08 2 agreement to sell the property in favour of the appellant by the first respondent, where under, he had received an amount of Rs.2,35,000/- as advance and being a neighbour, on his request that he should not be compelled to sell the property, the agreement was returned and by way of return of the advance amount, two cheques were issued, one for Rs.1,50,000/- by the first respondent and another cheque for Rs.85,000/- by his wife in favour of the appellant and the court below has disbelieved the case of the complainant, without properly appreciating the case of the appellant and further that the court below wrongly accepted Exhibits D1 and D2 as the chitty pass books issued in the chitty conducted by the appellant, whereas he was only a collection agent. 3. The case of the appellant that there was an agreement to sell the immovable property in his favour, executed by the first respondent, where under, he had paid an amount of Rs.2,35,000/- as advance, had not been alleged in the complaint. CRA 2/08 3 For the first time it is alleged only in the proof affidavit filed in the court below. The case of the appellant that the agreement executed in his favour was returned without any record whatsoever on the request made by the first respondent and his wife for themselves being discharged of the liability from executing the sale deed, receiving two cheques only, one for Rs.1,50,000/-, as evidenced by Exhibit P1 and the other for Rs.85,000/-, is something, which cannot be believed at all. A person, who has advanced an amount of Rs.2,35,000/- in cash for purchase of an item of immovable property and got an agreement executed in that behalf, if at all, he is to give up his rights to get the sale deed executed, in specific performance of the agreement, he will do it only on getting returned the amount paid by him under the agreement or at least a major portion of the said amount, even, in case there is much attachment between the appellant and the first respondent. The appellant has no explanation at all, as to why CRA 2/08 4 receiving two cheques and without encashing them, he has returned the agreement executed by the first respondent in his favour. Further, if at all there was such an agreement, nothing prevented the appellant from alleging that in the complaint, rather than disclosing it for the first time in the proof affidavit. 4. The defence has set up a case that Exhibit P1 cheque was being issued by way of security while receiving the prize amount in the chitty conducted by the appellant, evidenced by Exhibits D1 and D2. The signatures in Exhibits D1 and D2 chitty pass books are admitted by the appellant, as PW1. He has no case that the first respondent had not prized the kuri, apart from contending that he was only a collection agent. If at all the appellant is not the foreman and some one else was the foreman of the chitty, one would, naturally, expect the appellant to examine the said foreman as a witness and cause records obtained by him, by way of security at the time of disbursement of the prize CRA 2/08 5 amount, to be produced in court to show that the prize amount was being disbursed obtaining proper security and not on receipt of blank cheques only. That was not done. 5. In the circumstances discussed above, the presumption available under Section 139 of the Negotiable Instruments Act in favour of the appellant, who is the payee under the cheque, stands rebutted, on preponderance of probabilities and natural course of events, established on evidence. Hence, the conviction of the first respondent could not have been arrived at, as rightly found by the court below. The acquittal of the first respondent under Section 255(1) Cr.P.C., in the circumstances, has to be upheld and I do so. This appeal is, hence, devoid of any merit. In the result, I dismiss this criminal appeal. 8th January, 2008 (K.P.Balachandran, Judge) tkv