IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 1082 of 2002() ----------------------------------- ST.319/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KOCHI .................... APPELLANT/COMPLAINANT: ----------------------------------------- P.V. ASHOKAN, S/O. VELU, PANAYIL HOUSE, NAYARAMBALAM. BY ADV. MR.K.I.ABDUL RASHEED RESPONDENT/ACCUSED: ------------------------------------ M.J. THOMAS, S/O. JOHN, MENCHERRY HOUSE, NAYARAMBALAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. MR.T.N.SURESH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1082 OF 2002 = = = = = = = = = = = = = = = Dated this the 24th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Kochi in S.T.319/00. It is the case of the complainant that the accused had borrowed a sum of Rs.1,95,000/- and towards the discharge of the same had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds. Thereafter a statutory notice was issued and the prosecution was launched. 2. The case of the defence appears to be that along with the complainant and another man, a kuri was conducted and when there was lack of money for carrying out the chitty business he had given a blank cheque and that had been utilized for filing this complaint. PW1 and DW1 and 2 were examined. Exts.P1 to P5 and D1 to D8 were marked. On an analysis of the materials the Court below acquitted the Crl. Appeal NO. 1082 OF 2002 -:2:- accused holding that the case set up by the accused appears to be more probable. 3. It is the case of the complainant that the accused had borrowed a sum of Rs.1,95,000/- and towards the discharge of the same had issued a cheque. On the other hand, the case of the accused is that there was a joint business conducted by three people and when the business was running in a loss a blank cheque was issued for the purpose of raising funds. 4. PW1 is the complainant. PW1 very specifically asserts about the advancement and issuance of cheque. In the cross examination he would depose that the amount was advanced on 5.2.99. It was advanced for the purpose of the special contract work and fishing business and that the amount was given from his house. It is also submitted by him that two of his brothers-in-law did give Rs.50,000/- each and he took Rs.45,000/- from his bank and had advanced the amount. He would depose that there is no other financial transaction between the persons. A question has been put to Crl. Appeal NO. 1082 OF 2002 -:3:- him that whether he along with the accused and one Sadanandan was running a chitty by name TAS wherein 'T' represents Thomas, 'A' represents Asokan and 'S' represents Sadanandan. He was forced to admit the same. Then various questions were put to him regarding the transaction. 5. A perusal of the documents produced by the accused would show that on 26.9.99 an agreement was entered into between these three persons wherein they did owe amount to 73 subscribers and by virtue of the agreement all of them together had agreed to wipe off that amount. Ext.D2 specifically states that the complainant has to disburse Rs.2,00,500/-, accused Rs.89,500/- and Sadanandan Rs.30,000/-. Ext.D3 is an agreement relating to the undertaking by the relatives of the complainant for disbursal of the amount. Ext.D4 is an account showing the amounts. Ext.D5 is the reply notice issued in line with the defence. So it has come out in evidence that the complainant, the accused and one Sadanandan were running a business called TAS and it was running under heavy loss and by mutual agreement Crl. Appeal NO. 1082 OF 2002 -:4:- they decided to disburse the amount due to the subscribers in proportion as described in Ext.D2. The complainant wanted to pretend total ignorance about the same and it has been established beyond doubt in this case that there was conflict with the documents produced by the defence. DW2 is one Joy George. He had spoken about Ext.D2, handing over the cheque etc. and it has been considered in detail by the learned Magistrate in para 7 of the judgment. It has also to be stated that Ext.P1 cheque is dated 15.8.99. Admittedly when the business was in doldrums immediately thereafter on 26.9.99 in order to satisfy the subscribers the complainant, accused and Sadanandan divides the liability and the relatives of the complainant undertakes to do so by some documentary evidence as well. So it was a stage where there was no proper money left with the complainant. So under such circumstances one has to find that the evidence of PW1 that he had Rs.45,000/- with him and that he had been given Rs.50,000/- each by brothers-in-law seems to be unacceptable. So it is correctly held that the case set up by the complainant does Crl. Appeal NO. 1082 OF 2002 -:5:- not inspire confidence regarding the correctness of the same. I find the preponderance of probability weighs with the case of the accused for the reason that documentary evidence produced by the defence and admitted by the complainant will show about the nature of business these people had at that point of time. So in this background the Court arrived at a decision that the complainant has failed to prove the case. I do not find any grounds to interfere with the same and therefore the order of acquittal does not call for any interference. Hence the appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1082 OF 2002 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1082 OF 2002 = = = = = = = = = = = J U D G M E N T 24th August, 2009