IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRL.A.No. 820 of 2002() ----------------------- ST.185/1998 of CHIEF JUDL.MAGISTRATE, KOZHIKODE .................... APPELLANT(S): COMPLAINANT ------------------------- DR. A.P.MAHASOOM, RETREAT, 5/352 A NALLALAM, CALICUT, REPRESENTED BY POWER OF ATTORNEY HOLDER, BOOVANDAS BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ACCUSED & STATE ---------------------- 1. ARANGIL GOPINATH, SREEVALSA, POTTANGADI RAGHAVAN ROAD, NEAR C.P.S. HOSTEL, WEST NADAKKAVU, CALICUT - 673 011 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON 16/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.APPEAL 820 OF 2002 -------------------------------------- Dated: JULY 16, 2009 JUDGMENT Challenge in this appeal by the complainant is to the judgment of the Chief Judicial Magistrate, Kozhikode in S.T.No.185/1998 dated February 5, 2002, acquitting the first respondent/accused of the charge under Section 138 of the Negotiable Instruments Act. 2. The appellant filed a complaint before trial court alleging that the accused agreed to purchase shares of the complainant and other shares in the partnership firm M/s. Hospice Air Travels, Calicut, on payment of Rs. 95,000/-each, that the accused promised to pay the amount in one year from 14/10/1996 and for which the accused issued the cheque, Ext.P1 dated 14/10/1997 drawn on the Kozhikode branch of SBI, which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the appellant in the bank and that in spite of the notice issued, the accused did not repay CRL.APPEAL 820 OF 2002 2 the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of PW1, the complainant, and took cognizance of the case. The accused on appearance before the lower court pleaded not guilty to a charge under Section 138 of the Negotiable Instruments Act. PW1 and PW 2 were examined and Exts.P1 to P4 were marked for the complainant. When questioned under Section 313 Cr.P.C., the accused denied the execution of the cheque in consideration of the value of the share of the complainant and filed a statement contending that the share value was given to all the sharers including PW1 who issued a receipt for the same, that at the time of settlement, accused gave a signed blank cheque to the mediator Dr.M.A.Koya and that misusing the said cheque, PW1 created Ext.P1. DW1 to DW4 were examined. Exts.D1 to D5 were marked by the accused. The lower court on an appreciation of evidence accepted the case of the accused that Ext.P1 is without consideration and dismissed the complaint acquitting the first respondent/accused. The complainant has now come up in CRL.APPEAL 820 OF 2002 3 appeal. 4. Sri.V.N.Ramesan Nambisan, learned counsel for the appellant, argued that the lower court failed to appreciate the evidence properly, that DW1, Dr.M.A.Koya, the alleged mediator, did not say anything about the alleged handing over of the cheque by the accused and that therefore the lower court went wrong in holding that the accused has succeeded in dislodging the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act. Counsel for the 1st respondent/accused was absent when the appeal came up for hearing. 5. The following points arise for consideration : 1) Whether the finding of the lower court that the cheque Ext.P1 was issued by the accused only as a security and not supported by consideration can be sustained ? 2) Whether the finding of the lower court that the first respondent/accused is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitting him is sustainable ? 6. Point Nos. 1 and 2 It is proved by the evidence of PW1, the CRL.APPEAL 820 OF 2002 4 appellant/complainant and Exts.P1 to P4 that the cheque Ext.P1 which, when presented for collection through the Bank of PW1, was returned dishonoured for want for sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P4 issued, the accused did not repay the amount. The issuance of the cheque Ext.P1 is admitted by the accused. The case of the accused is that Ext.P1 cheque is not supported by consideration and that it was issued only as a security. 7. For the following reasons I am in complete agreement with the above finding of the lower court. The specific case of PW.1 was that towards the share value of the partnership firm, M/s. Hospice Air Travels, Calicut, the accused issued the cheque Ext.P1 dated 14.10.1997. The case of the accused is that towards the share value of the partners of the firm, a signed blank cheque was provisionally entrusted as security to Dr. M.A.Koya, DW.1, who was one of the mediators. The amount due to all the partners including the complainant was given to DW.1 and acknowledging the receipt of the amount, the complainant has issued the receipt Ext.D2 and that therefore Ext.P1 cheque is not supported by any consideration. To prove CRL.APPEAL 820 OF 2002 5 his case, the accused examined Dws.1 to 4. DW.1 is Dr. M.A. Koya, who was one of the alleged mediators between the accused and PW.1. He would say that he had seen the handing over of the cheque, but his evidence does not help the accused to prove his case. Dws.2, 3 and 4 are the former partners of the firm. DW.2 proved Ext.D3, copy of the agreement dated 2.8.1996, which evidences the payment of share value by the accused. Dws.2 and 3 would say that the accused gave them cheques as security and that on payment of cash, the cheques were returned to the accused. Ext.D5 is a photocopy of such a cheque issued by the accused to DW.3. DW.4 is another former partner who also testified that the accused paid him the share value. Ext.D2 dated 24.9.1996 is a receipt issued by PW.1 to the accused for having received the share value. It is proved through PW.2, one of the witnesses, who had witnessed the transaction between PW.1 and the accused. The evidence of DWs.2 to 4 and the recitals in Ext.D2 clearly prove the case of the accused that as a security for the share value, he issued Ext.P1 cheque and that in spite of the payment of the amount the cheque was not returned. It follows and I hold that the lower court is justified in holding CRL.APPEAL 820 OF 2002 6 that Ext.P1 cheque is not supported by consideration and that the accused had succeeded in rebutting the presumption available under secs.118 and 139 of the Negotiable Instruments Act. That being so, the judgment of the lower court finding the accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him has to be confirmed. In the result, the appeal is dismissed confirming the judgment of the lower court acquitting the 1st respondent/ accused. P.Q. BARKATH ALI, JUDGE mt/-