IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 CRL.A.No. 738 of 2001 ------------------------------------ CC.28/98 OF JFCM-II, HARIPAD ........ APPELLANT/COMPLAINANT: SAHADEVAN, S/O KOCHUNANU, PADMAVALLIL KIZHAKKATHIL HOUSE, KARUVATTA P.O., ALAPPUZHA DISTRICT. BY ADV. DR.P.S.KRISHNA PILLAI RESPONDENTS/ACCUSED & STATE: 1. VIJAYAN, IDAYILAKKARAYIL VEEDU, KARUVATTA SOUTH, KARUVATTA P.O., ALAPPUZHA DISTRICT. 2. STATE REP. BY THE DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU BY ADV. SRI.GRASHIOUS KURIKOSE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 738 of 2001 --------------------------- JUDGMENT The is an appeal filed by the complainant in C.C.No.28/98 on the file of the Judicial First Class Magistrate's Court-II, Haripad, assailing the acquittal of the first respondent under Section 255 (1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. The complaint is that the first respondent borrowed from him an amount of Rs.80,000/- on 22.9.1997, entrusting with him Exhibit P1 cheque dated 22.12.1997 towards discharge of the said liability; that accordingly, he forwarded the said cheque for collection through his bankers, whereupon it was returned dishonoured under Exhibit P2 memorandum on 31.12.1997; that the cheque along with Exhibit P2 memorandum was delivered to him by his bankers under Exhibit P3 memo; that thereupon, the original of Exhibit P5 notice was issued to the first respondent through Lawyer intimating him of CRA 738/01 2 the dishonour of the cheque and demanding payment of the amount covered by the cheque and that was received by the first respondent under Exhibit P6 postal acknowledgment card on 10.1.1998, but that despite receipt of notice, the first respondent has neither issued any reply nor has he paid up the amounts covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On appearance of the first respondent in the court below, pursuant to receipt of summons, the learned Magistrate read over the particulars of the offence, explained it to him and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the appellant/complainant, PWs 1 to 3 were examined and Exhibits P1 to P9 were got marked. On the complainant closing his CRA 738/01 3 evidence, the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he had availed of a loan of Rs.12,500/- from the appellant and has repaid an amount of Rs.5,000/- therefrom and the balance amount of Rs.7,500/- is due to the appellant; that towards the amount borrowed and due from him, the appellant has caused him to open an account and issue a cheque and that actually, no amount as alleged is due. On the defence side DWs 1 and 2 were examined. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found that the case of the appellant that he has advanced an amount of Rs.80,000/- to the first respondent cannot be true and consequently, acquitted the first respondent under Section 255(1) Cr.P.C. of offence punishable under Section 138 of the CRA 738/01 4 Negotiable Instruments Act. Hence this appeal. 6. It is vehemently contended before me by the learned counsel for the appellant that the court below was disbelieving the case of the complainant for the sole reason that he has, in cross- examination, deposed that he is a Coolie; that the court below has misunderstood the said version to mean that the appellant is penniless; that in fact, he was one, who was engaged in the trade in “baniyan” and was maintaining good friendly relationship with the first respondent, who was running a provision store and stationery business; that on several occasions, the first respondent had helped him financially and he also has rendered financial assistance to the first respondent and that in the circumstances, there was no reason for the court below to hold that the appellant was not having any means to raise funds, though, however, for advancing loan to the first respondent, he was getting an amount of Rs.50,000/- from his brother CRA 738/01 5 and another amount of Rs.30,000/- from his friend Uthaman. 7. Counsel further contends that the approach of the court below that unless a person is financially sound and liquid cash is with him, no amount will be advanced by him to a friend of his, who had, on several occasions, helped him financially, is not a contention, which stands to reason and that in the circumstances of the case set up by the first respondent and the fact that he has not issued any reply to Exhibit P5 notice received by him under Exhibit P6 postal acknowledgment card, should have been found to go a long way to establish the case of the appellant, rather than accepting the false contentions set up by the first respondent. It is also his case that in the circumstances, the appellant should not have been found fault with for not examining his brother and his friend Uthaman, who have advanced amounts as deposed to by the appellant for the purpose of CRA 738/01 6 advancing Rs.80,000/- to the first respondent. It is also contended by him that when questioned, the first respondent has stated that he was being made to open an account and to issue Exhibit P1 cheque, but that, Exhibit P8 extract of account maintained by the first respondent would go to show that he has opened the account at least as early as on 30.12.1996, whereas, Exhibit P1 cheque is one issued at the time of availing of the loan on 22.9.1997 and that is almost ten months after starting of the account by the first respondent. 8. I have heard submission of the counsel for the first respondent as well. 9. It is true that PW1 has deposed, when cross-examined, that he is a Coolie. According to him, he has acquaintance with the first respondent for the last six years and the first respondent had helped him on several occasions financially and he also has rendered financial help to the first respondent. He has further stated that the first CRA 738/01 7 respondent is having a tempo and that the amount was being asked for by way of loan for remittance of amounts in relation to the said tempo; that two days earlier to advancing of the amount, the first respondent had asked for loan and that was why he was obtaining Rs.50,000/- from his brother and an amount of Rs.30,000/- from his friend Uthaman. He has further deposed that the first respondent was bringing over to his house a cheque duly written up and the first respondent was signing in it in his presence and has denied the suggestion that the blank signed cheque received from the first respondent by way of security was being filled up by him to foist the case. The question as to whether a person, who is not having sufficient funds to advance loan, would borrow amounts from his brother or his friend and advance loan to one of his friends, is a matter that depends on the circumstances of each case and the relationship that the parties maintain between them. The first CRA 738/01 8 respondent has no case that the appellant was not his friend or that there was no financial transaction between himself and the appellant. If at all, as is contended by the first respondent, he had availed of a loan of Rs.12,500/- and has repaid Rs.5,000/- therefrom, certainly, to Exhibit P5 Lawyer notice he would have sent reply stating those facts. On the other hand, the first respondent has not issued any reply to Exhibit P5 notice and he has no case that he has approached the appellant and attempted for a negotiation when such an exorbitant claim was advanced against him misusing a blank signed cheque that had been entrusted with the appellant. As rightly contended by the learned counsel for the appellant, that is a circumstance which goes a long way to establish the case of the appellant and to belie the contention set up by the first respondent. 10. It is worthy to note that the suggestion put to PW1 is as to whether the blank signed cheque CRA 738/01 9 was not being issued with the first respondent at the time of borrowing an amount of Rs.13,000/- and not Rs.12,500/-. When questioned under Section 313 Cr.P.C. also, there is discrepancy in his version, as to the last question he has stated that he has borrowed only Rs.12,000/- and returned Rs.5,000/- and he has to pay the balance amount of Rs.7,500/-. The truth can only be one and when there is inconsistency in the stand taken by the party, it can only be taken that the inconsistency is on account of the false nature of the contentions set up. The mistake in the amounts borrowed, stated by the first respondent in the instant case can be attributed only to the false nature of the contentions so advanced by him. It is also strange as to why the first respondent should say that he was made to open an account and issue a cheque, when Exhibit P8 evidences that the said statement is not true. Considering the relationship between the appellant and the first respondent brought out CRA 738/01 10 in cross-examination of PW1, it is highly improbable also to think that on advancing only an amount of Rs.12,500/-, the appellant would receive a blank signed cheque from the first respondent or that the first respondent would give a blank signed cheque when he avails a loan of Rs.12,500/- only. From all these circumstances, I am of the view that non examination of the brother of the appellant and Uthaman, the friend of the appellant, from whom amounts were received by the appellant to advance funds to the first respondent, no doubt, will not be fatal to the case of the appellant, though, it would have been better had they also been examined. However, the false nature of the contentions having been established from the circumstances brought out in evidence in the case, I am of the view that the appellant was successful in establishing his case that he has advanced an amount of Rs.80,000/- to the first respondent by way of loan and that Exhibit P1 cheque was being issued by the first CRA 738/01 11 respondent on the date of availing of the loan for the discharge of the said debt. Hence, the order of acquittal passed by the court below deserves to be set aside and the first respondent convicted for offence under Section 138 of the Negotiable Instruments Act. In the result, allowing this appeal, I set aside the order of acquittal, acquitting the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act and convict him of offence under Section 138 of the Negotiable Instruments Act. For questioning the first respondent regarding the sentence, posted to 15.2.2008. 5th February, 2008 (K.P.Balachandran, Judge) tkv CRA 738/01 12 K.P.Balachandran, J. --------------------- Crl.A.No.738 of 2001 --------------------- JUDGMENT 5th February, 2008