IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 CRL.A.No. 632 of 2004() ----------------------- AGAINST THE JUDGEMENT IN CC.948/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM. .................... APPELLANT(S): ------------------- V.D.UDAYAN, VAZHAPPARAMBIL HOUSE, PONNURUNI, COCHIN. BY ADV. SRI.T.D.ROBIN RESPONDENT(S): --------------------- 1. A.A.JOSEPH, ARAKKAL HOUSE, KALLYATINKARA P.O., ARAYANKAVU, COCHIN. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KEKRALA, ERNAKULAM. ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE FOR R1 SRI. NIREESH MATHEW FOR R1 PUBLIC PROSECUTOR MR. P.A SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.632 OF 2004 ----------------------------------- Dated 30th June, 2011 J U D G M E N T This appeal arises from an order of acquittal. 2. Appellant is the complainant he filed a complaint against first respondent/accused alleging offence under section 138 of Negotiable Instruments Act on the allegation that accused borrowed an amount of Rs.2 lakhs from the complainant in July 1997 and issued Ext.P1 cheque for the discharge of the said debt in July 1998. Cheque was dishonoured on presentation to the Bank, due to insufficiency of fund. A lawyer notice was issued as Ext.P4. A reply was sent on false allegations. The amount was not paid and hence the complaint. 3. Evidence was adduced and after trial learned Magistrate convicted the accused as per order dated 27.9.2002. Against conviction appeal was filed and Additional Sessions Court set aside the conviction and sentence, since trial court has failed to dispose of the application filed by accused for reopening the evidence and adducing evidence on his side. The case was remanded for fresh disposal. Crl.A. No.632/04 2 4. The case was taken up by trial court and a petition was filed by accused as Crl.M.P.7680/2002. The said petition was dismissed. The prayer in the petition was to sent Ext.P1 cheque for examination by a handwriting expert. Both sides were heard and trial court acquitted the accused. Hence this appeal. 5. Appellant examined himself as PW1 and marked Ext.P1 to P8. Accused took up a contention that he does not owe Rs.2,00,000/- as alleged. He stated in the reply notice itself that he availed only a loan of Rs.23,000/- in march 1997 in connection with his daughter's marriage and certain amounts were paid in two instalments. The amount was advanced on condition that it will be repaid with 72% interest. As security two blank cheques were obtained by complainant. Accused could not pay interest since he was suspended and dismissed from service. Dishonour of cheque led to the action taken by bank. Appellant was forced to settle the matter and he expressed his willingness to pay Rs.23,000/- with agreed interest of 72%. Still a false complaint was filed. 6. Trial court found on analysis of entire evidence found that version given by PW1 regarding the transaction was not quite acceptable. It is brought out in evidence that PW1 is a money Crl.A. No.632/04 3 lender, but he did not obtain any security at least as receipt or in some other form while a huge amount of Rs.2,00,000/- was advanced to the accused. The money was not repaid and it was only after one year in July 1998 that Ext.P1 cheque was allegedly issued for discharge of the debt, is the contention. 7. The trial court considered the veracity of the version given by PW1 and passed the following observations and findings in paragraph 15 of the impugned order: “15. For the complainant, he has given an amount of Rs.2,00,000/- without giving any written document from the accused at the time of his giving of that money in July 1997. He cared to get the impugned cheque also only in July 1998 after a lapse of one year. The complainant had deposed that he has given the amount as a interest free loan to be repaid to him on demand. Lending of 2 lakhs rupees by the complainant-business man to the accused- bank employee herein without obtaining any receipt or security from the borrower for his surety is against the ordinary course of human conduct in the given situation. ................................................... .......................... According to the complainant he does not know the author of the given writings in Ext.P1 cheque. For him, the accused has signed before him the pre-written Ext.P1 cheque. ........................................................ .......................... As has been deposed by DW1, the ink of the admitted signature of the accused in Ext.P1 is different from the Crl.A. No.632/04 4 ink used to make the other writings in Ext.P1. On my perusal of Ext.P1 also, it is found that while the admitted signature of the accused herein is put using a thin pointed ball pen. The impugned writings in Ext.P1 is made using a comparatively thick pointed ball pen. PW1 himself admits that he impugned writings are not made at the same time of signing of the cheque. For him, the accused brought to his firm Ext.P1 with the impugned writings on it and thereupon, only put his signature in his presence. Thus admittedly the signing of the cheque and making of the other writings on the cheque did not occur at the same time.” 8. Trial court also noticed that there was difference in the ink in the signature and also in the writings in Ext.P1 and the complainant could not give any acceptable explanation for the difference. The relevant observation of the trial court are at page 9 of the impugned judgment: “According to the complainant he does not know the author of the given writings in Ext.P1 cheque. For him, the accused has signed before him the pre-written Ext.P1 cheque. ......................................................... ......................................... . As has been deposed by DW1, the ink of the admitted signature of the accused in Ext.P1 is different from the ink used to make the other writings in Ext.P1. On my perusal of Ext.P1 also, it is found that while the admitted signature of the accused herein is put using a thin pointed ball pen. The impugned writings in Ext.P1 is made using a Crl.A. No.632/04 5 comparatively thick pointed ball pen. PW1 himself admits that he impugned writings are not made at the same time of signing of the cheque. For him, the accused brought to his firm Ext.P1 with the impugned writings on it and thereupon, only put his signature in his presence. Thus admittedly the signing of the cheque and making of the other writings on the cheque did not occur at the same time.” 9. There is only evidence of PW1 to prove appellant's case. His evidence was tested by cross examination and the various circumstances brought out in evidence were analysed by trial court on the scale of probabilities and normal human conduct and it was found that the version of the complainant, regarding the transaction was doubtful. If the transaction itself is not proved to the satisfaction of the court and there is some doubt regarding the difference in the handwriting and signature in the cheque it will be only reasonable to hold that cheque involved was not issued for the discharge of legally enforceable debt. Such finding cannot be said to be unreasonable or perverse. 10. However, leaned counsel for appellant argued that appellant had acquaintance with the accused for about 6 years and he had lent money to him earlier also and he trusted the accused and gave Rs.2,00,000/- without any security since he Crl.A. No.632/04 6 wanted the money for his daughter's marriage. There is no improbability in said conduct, it is strongly argued. It is also argued that there is no relevancy in the discrepancy in the ink used in Ext.P1, since the accused admitted his signature. 11. Learned counsel for respondent also argued that going by evidence of PW1 himself, he had no acquaintance for six years with the accused as revealed from his evidence. He had no case that he had six years acquaintance prior to the giving of money to the accused. It is submitted that it is unlikely that a person like PW1 who is a business man, who is doing money lending also would give Rs.2,00,000/- without interest and without obtaining any security for the amount. The trial court's findings cannot be said to be perverse, it is strongly contended. 12. It was also pointed out that accused has a definite case that cheque was handed over in a blank form and therefore, there may be some difference in the ink used in the writings and the signature in the cheque. On hearing both sides and on going through the records the the impugned order I find that trial court has appreciated the evidence in the right perspective, going by normal human conduct and on the scale of broad probabilities. Evidence of PW1, which is uncorroborated by independent Crl.A. No.632/04 7 evidence cannot be acted upon to convict first respondent for offence under section 138 of Negotiable Instruments Act, in the light of various discrepancies and infirmities in his evidence, as pointed out by trial court. I am satisfied that trial court has not committed any error in acquitting the accused and hence appeal could only be dismissed. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge