IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.A.No. 1535 of 2003() ----------------------------------------- (AGAINST THE ORDER IN CRL.L.P.NO. 6110/2003 DATED 20/08/2003 IN CC.726/2000 of JUDL.MAGISTRATE OF FIRST CLASS, COURT-I, SULTHANBATHERY ............................................................................................................... APPELLANT/ COMPLAINANT: ------------------------------------------ O.A.BHAVA, S/O.AHAMMED, OTHAYOTH VEEDU, MOOLANKAVU, BATHERY. BY ADV. SRI. N.M.JAMES RESPONDENTS/ACCUSED: ---------------------------------------- 1. PADMANABHAN, S/O.VELU, ALANCHERRY VEEDU, KALLUVAYAL, NEAR EXCISE OFFICE, SULTHAN BATHERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI. N. J. ANTONY FOR RI SRI. C.M.NAZAR, PUBLIC PROSECUTOR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ln M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 1535 OF 2003 ------------------------------------- Dated this the 30th day of June, 2009. J U D G M E N T This is an appeal preferred against the order of acquittal passed by Judicial First Class Magistrate -I, Sulthanbathery. It is the case of the complainant that the accused towards the balance sale consideration for purchase of the property had issued a cheque for Rs. 45,000/- which when presented for encashment returned for ' insufficiency of funds' and so the action is initiated u/s. 138 of the N.I. Act. The case of the accused is to the effect that there was an agreement of sale deed between the complainant and the accused . It was found that the complainant has no right at all and that he had given a cheque for Rs. 4500/- as security which had been corrected as 45,000/- and prosecution is initiated. 2. PW`1 and DW1 were examined, Exts. P1 to P9 and D1 were marked. The court below did not accept the case of the complainant and acquitted the case. 3. It is to be stated that the property which was sold to CRA.NO. 1535/2003 2 the wife of the accused belonged to one Sudarsanan. The said Sudarsanan had by virtue of Ext. D1 had sold the property for consideration. He had been examined as DW1 , He had spoken about the transaction and further deposed that he has not authorised the complainant or anybody to deal with his property and that he has not entered into any agreement with any other person for the sale of the property. Ext.D1 would conclusively establish that the property has been sold to the wife of the accused directly by Sudarsanan.. 3. The learned counsel for the appellant would submit before me that Ext.P7 is an agreement entered into between the complainant and the accused. The sale consideration was fixed at Rs.5,20,000/- out of which Rs.1,57,000/- and Rs.1,18,000/- was paid and Rs. 2,00,000/- was reserved towards the discharge of the liability to the bank and for the balance Rs. 45,000/- the present cheque is issued. On the contra the accused would content that there was an agreement for sale but on enquiry it was revealed that the complainant did not have any saleable interest over the property and at that time a cheque for Rs. 4500/- was given as security which has been corrected as 45,000/- and case CRA.NO. 1535/2003 3 initiated. So the result of the case would depend upon the acceptability of the transaction or alleged agreement for sale in this case. Unfortunately for the complainant the real owner namely Sudarsanan had clearly deposed that he had sold the property to the wife of the accused for consideration. Though it is alleged in Ext.P7 that there was an agreement between the complainant and Sudarsanan. It does not see the light of the day which is very fatal to the case. So from the materials available it can be seen that the complainant has nothing to do with the property and property has already been transferred by the real owner in favour of the wife of the accused. So the case set up by the accused appears to be more probable and acceptable and the case of agreement to sell and issuance of cheque set up by the complainant does not appear to be true and correct. The learned Magistrate had analysed the matter only in the correct perceptive to arrive at a decision. Therefore, the order of acquittal does not call for any interference and so the criminal appeal is dismissed. M.N.KRISHNAN, JUDGE CRA.NO. 1535/2003 4 ln.