IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 CRL.A.No. 28 of 2011() ---------------------- CC.342/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... APPELLANT(S): -------------- P.RADHAKRISHNAN S/O.KUMARAN NAIR, PARANGODATHU HOUSE P.O.THEKKUMKARA, PUNNAPRAMBU, THALAPPILLI. BY ADV. SRI.JIJO PAUL RESPONDENT(S): --------------- 1. ANTO KUNJAPPA, S/O.KUNJAPPA KUNTHATHOTTATHIL HOUSE C/O.SUNIL NAMBOOTHIRI MANA, VII/390, PANCHAJANYAM, KIDANGOOR PO, VENJUR DESOM ANKAMALI, ALUVA TALUK, ERNAKULAM 683 572 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31 ADV. SRI.RAJESH CHAKYAT FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.28 of 2011 ----------------------------------------------- Dated 21st January, 2011. J U D G M E N T This appeal is filed against an order of acquittal. 2. The appellant is the complainant. He filed a complaint before the Magistrate Court against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act on the allegation that Rs.5,50,000/- was due from first respondent to the complainant and towards repayment of the said amount, he issued Ext.P1 cheque for the said amount. The cheque, on presentation was dishonoured and a lawyer notice was issued. The notice was accepted by accused, but no reply was sent and no payment was made. Hence, the complaint. 3. To prove the prosecution case, PW1 was examined and Exts.P1 to P6 were marked. The accused took up a contention that he was a subscriber in the chitty conducted by Kausthubham Kuries. He gave a blank cheque as security to the said company, but it is misused by complainant. No amount is due from the accused to the complainant, it is submitted. Crl.Appeal No.28/11 2 4. The trial court, on an analysis of the evidence in detail found that the solitary evidence of PW1 was not sufficient to prove the case against accused. The trial court found that execution is not proved. It was observed that PW1 had no special relationship with accused and he did not remember even the date on which the huge amount was allegedly given to accused. Further, the loan was advanced without obtaining any security. It was also found that PW1 had no source of income to advance an amount of Rs.5,50,000/-. The relevant findings in paragraphs 12 and 13 are extracted hereunder : “If the evidence of PW1 is to be believed, he allegedly advanced a huge amount of Rs.5,50,000/- as loan to the accused without obtaining any security. No special relationship between the parties which might have resulted in such a transaction has been brought out. PW1 stated in his cross examination that the accused had supplied metal to the hollow brick institution run by PW1. At that time, the accused was having a quarrel. However, PW1 has no case that there had been any previous loan transaction between himself and the accused. It is not believable that the alleged supply of metal by the accused to PW1 would have persuaded PW1 to part with a huge amount of Rs.5,50,000/- without obtaining any security. Further, going by the evidence of PW1, the Crl.Appeal No.28/11 3 accused allegedly issued Ext.P1 at a time when PW1 was not having any document to prove the alleged loan transaction and at a time when the funds were insufficient in the account of the accused. Such a case is inherently improbable. The source of PW1 to advance Rs.5,50,000/- is under challenge. PW1 stated in his cross examination that he gets income of Rs.25,000/- from business. However, he is not an income tax payee. He tried to explain that he had received amounts from 5 persons in his business and the said amounts were advanced to the accused. At the same time, he admitted that the said alleged receipt of amounts are not shown in the accounts of his institution. He further stated that the collections of the company were also advanced to the accused. The above versions of PW1 are not proved by any documentary evidence. The conclusion to be drawn is that the source of PW1 to advance Ext.P1 amount has not been proved. It is yet another reason to reject the case of the complainant.” 5. Learned counsel for appellant vehemently contended that the accused did not send any reply to the lawyer notice. He did not deny the transaction nor execution of the cheque at the earliest opportunity. He also did not probabilise his case and this fact is found by the trial court itself. In such circumstances, the appeal may be admitted, it is Crl.Appeal No.28/11 4 submitted. 6. On hearing appellant's counsel and on going through the order, I am not satisfied that this is a fit case to admit the appeal on the grounds advanced. The mere failure to send a reply notice may not be sufficient to interfere in the findings entered into by the trial court on the relevant aspects. The source of income itself is under challenge and evidence of PW1 was not sufficient to conclude that he had sufficient income to give a huge amount of Rs.5,50,000/- to the accused, that too, with whom he had no special relationship. I do not find any reason to interfere in the findings of the trial court or admit the appeal. This appeal is dismissed. K.HEMA, JUDGE. tgs