IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 CRL.A.No. 1008 of 2005() ------------------------ ORDER IN CRL.LP.293/2005 Dated 18/05/2005 CC.1868/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT/COMPLAINANT --------------------------- JUDE PAUL, S/O.A.M.PAUL, AGED 35 YEARS, AMBAT HOUSE, EDAPPALLY P.O., KOCHI-24. BY ADV. SRI.P.M.JOSHI RESPONDENTS/ACCUSED & STATE ------------------------------ 1.P.M.GOPALAKRISHNAN, PROPRIETOR, PRIMARY EDUCATION ACADEMY, SYGAMA, SANTHI NAGAR, THEVARA, KOCHI-13. 2.STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.D.PEETHAMBARAN SRI.M.R.SABU R2 BY PUBLIC PROSECUTOR MR.ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.1008 of 2005 ---------------------------------------------------- Dated this the 5th day of September, 2011 Judgment The complainant is in appeal. The accused who faced trial in a case instituted under Section 138 of the N.I.Act was acquitted by the learned Magistrate under Section 255(1) Cr.P.C. The case of the complainant is that the accused had borrowed from the complainant Rs.1,80,000/- and to discharge that debt Ext.P1 cheque dated 31.5.2000 was issued by the appellant which on presentment was dishonoured due to insufficiency of funds. On receipt of the memo from the Bank, statutory notice was sent to which no reply was sent by the accused. The amount covered by Ext.P1 was also not paid. Hence the complaint was filed. 2. The complainant got himself examined as P.W.1 and Exts.P1 to P7 were marked. Four witnesses were examined on the side of the defence and Ext.D1 was marked. The learned Magistrate found that the case of the complainant in Ext.P4 notice and in the complaint was that the accused had borrowed Rs.1,80,000/- from him and it was to discharge of that debt Ext.P1 cheque was issued whereas in cross-examination it was Crl.A.1008/05 2 stated by him that the aforesaid amount was given by him for getting share of the working capital. That case was not accepted by the learned Magistrate since there was no agreement at all with regard to the same. If it was the case of purchasing any percentage of share in the business of the company, then certainly there should be an agreement which would show the total capital of the business, the value of the share which the complainant was stated to have agreed to purchase from the accused. The specific case advanced by the accused was that the complainant was appointed by him as a tax consultant and in connection with the accused's business in respect of which the tax consultancy work was entrusted to the complainant, signed blank cheque leaves happened to be given to the complainant and that misusing one of such cheque leaves, this case was filed. It was also contended that altogether six cheque leaves were given to the complainant and that making use of another cheque leaf, a complaint was filed through another person. It is also contended that a suit was also filed against the accused but that was dismissed. 3. It is important that though so many contentions were Crl.A.1008/05 3 seen raised by the accused and also by the complainant, the evidence pertaining to the same has not been produced by both sides. It is also worthwhile to note that in Ext.P4 notice and in the complaint, it was stated by the complainant that he had lent Rs.1,80,000/- as if it was lent on the date of the cheque. There was no case for him that the amounts were lent by him on different earlier occasions. It is also important to note that in the complaint it was not at all stated that the amount was paid by him on different occasions. Not even the date of the so called lending was mentioned in the complaint or in the notice. On going through Ext.P4 and in the complaint, it would only suggest that the accused borrowed a sum of Rs.1,80,000/- in a single transaction and for that purpose Ext.P1 cheque was issued. It was not even stated that the amount was borrowed on a day earlier to Ext.P1. Similarly, though it was stated that the money for the purpose of lending was withdrawn from the Bank, that also remained unsubstantiated. He has not stated whether any other person had witnessed the lending of money either on any particular day or on all the dates when the money was stated to have been lent. Crl.A.1008/05 4 4. The complainant wanted to rely upon the presumption under Section 139 of the N.I.Act. In order to bank upon the presumption under Section 139, the complainant must prove that the cheque was duly executed by the accused. Execution of the cheque is one thing and the handing over of a signed blank cheque leaf is quite another. Here P.W.1 himself admits that he did not see who filled up the cheque. Therefore, it can be found that the evidence given by P.W.1 is only to the effect that a signed cheque leaf was handed over by the accused to the complainant. Therefore, according to the accused, there is no proof of execution of the cheque. 5. The learned counsel for the complainant would submit that the case putforward by the accused is totally unbelievable. According to the accused, as the complainant was his tax consultant, signed blank cheque leaves were used to be handed over by him. When he was asked as to the necessity of giving more than one cheque, he gives a strange explanation that since the cheque already given was kept in the pocket of another shirt, the complainant demanded another cheque and so he signed and handed over another cheque. If so, how could it be accepted that Crl.A.1008/05 5 he had handed over six such blank cheque leaves to the complainant? The learned counsel for the complainant would further submit that the fact that no reply was sent by the accused on receipt of the statutory notice would also go a long way against the case advanced by the accused, for, if actually the transaction mentioned in Ext.P4 was incorrect, the normal human conduct would certainly be to send a reply refuting the allegations contained in Ext.P4. This conduct also goes against the case set up by the accused. But it is important to note that except the interested version of P.W.1, that too which is vague as to the lending of money and also as to the execution of the cheque no other acceptable evidence was adduced by the complainant. Though it was contended by the complainant that he was not an employee of the accused, the evidence would show that the complainant was the tax consultant of the accused. Therefore, the contention raised by the complainant that it was not at all probable or possible for the accused to handover signed blank cheque leaves to the complainant cannot be accepted as such. 6. When exactly the amount was given by the complainant Crl.A.1008/05 6 to the accused and how it was made etc. are also not clear from the evidence adduced by the complainant. In such circumstances, the contention that the learned Magistrate has overlooked the evidence available in the case and so the acquittal is bad also cannot be sustained. However, to meet the ends of justice I find that it is just and proper that both parties should be given opportunity to adduce further evidence in the matter. 7. In the result, this appeal is allowed in part. The judgment of acquittal is set aside and the case is remanded to the Judicial First Class Magistrate Court-II, Ernakulam for fresh disposal in accordance with law. The parties will appear before that court on 10th October, 2011. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.1008/05 7 Crl.A.1008/05 8