IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 CRL.A.No. 64 of 2005(A) ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.14/2005 Dated 10/01/2005 ST.1077/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... APPELLANT(S): COMPLAINANT ------------------------- R.N.MURUKESAN, MANAGING PARTNER, SOORYA FINANCES, VANIYAMKULAM, OTTAPALAM TALUK. REP.BY HIS POWER OF ATTORNEY HOLDER, P.T.KRISHNA KUMAR, S/O. PALLIYALTHODI NEELAKANTAN, KARAKKAD AMSOM, KAVALAPPARA DESOM, OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): ACCUSED AND STATE ---------------------------------------------------------- 1. K.UNNIKRISHNAN S/O. DEVAKI AMMA, KADAMPAT HOUSE, NEDUNGOTTUR POST, SHORNUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ALEX M THOMBRA SRI.T.A.UNNIKRISHNAN FOR R1 SRI.P.P.THAJUDEEN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1.09.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.64 of 2005 ---------------------------------------------------- Dated this the 1st day of September, 2011 Judgment The complainant is the appellant. He filed the complaint against the first respondent/accused alleging offence under Section 138 of the N.I.Act. After trial, the accused was acquitted by the learned Magistrate. This appeal is directed against that acquittal. 2. The case of the complainant is that the accused and one Prasad approached him and borrowed a sum of Rs.20,000/- on 5.4.1999 and to discharge that debt Ext.P1 cheque was issued for Rs.21,200/-. When it was presented for collection, it was dishonoured on the ground of insufficiency of funds. On receipt of intimation, statutory notice was issued to the accused. He received the same, but failed to pay the amount. Hence the complaint was filed. 2. The complainant got himself examined as P.W.1 and Exts.P1 to P8 were marked. One witness was examined on the side of the defence as D.W.1 and Ext.D1 series were marked. 3. After trial, the learned Magistrate found that the amount of Rs.20,000/-, even according to the complainant, was Crl.A.64/05 2 borrowed by the accused and one Prasad. The fact that the amount of Rs.20,000/- was lent to the two persons mentioned above was not evidenced by any other evidence even though P.W.1 himself admitted that there are accounts relating to the lending of money. It was also found by the learned Magistrate that the evidence given by P.W.1 would show that the accused had paid some amount and as such the court below did not accept the complainant's case. Thus, the accused was acquitted. 4. The learned counsel for the appellant/complainant would submit that the learned Magistrate acquitted the accused solely on the ground that the name of Prasad does not find a place in the account maintained by the complainant. The learned counsel submits that the fact that Ext.P1 cheque was signed and handed over by the accused was practically not disputed. It is also not seriously in dispute that there were financial transactions between the complainant and the accused and as such when there is no acceptable evidence to show that the amount shown in Ext.P1 was repaid by the accused, it should have been found that Ext.P1 was duly executed by the accused to discharge the debt/liability. The learned counsel would also submit that the statutory requirements were duly complied with and hence the Crl.A.64/05 3 verdict of acquittal is unsustainable. 5. The learned counsel for the accused would submit that even according to P.W.1 the amount was borrowed by the accused and one Prasad and if so it eludes comprehension as to how the amount of Rs.20,000/- together with interest alleged to be due thereunder could be claimed from the accused and how that much amount could be entered in Ext.P1 cheque. It is not now disputed that the accounts maintained by the complainant would not show that a sum of Rs.20,000/ was lent to the accused and Prasad mentioned above. The complainant is a person engaged in money lending business. It has also come out in evidence that he was maintaining ledgers and other accounts relating to the money lending business and that those records were used to be produced before the concerned officer of the commercial taxes department. But the very fact that those account books do not show a particular transaction would itself go a long way against the case advanced by the complainant. That apart, when the liability to pay the alleged sum of Rs.20,000/- was to be shared by the accused and his friend Prasad, then it cannot be said that the accused was liable to pay Rs.20,000/- and interest thereon. There is no case for the Crl.A.64/05 4 complainant that Rs.21,200/- shown in Ext.P1 was the amount borrowed by the accused and the interest alleged to be due. Therefore, the probability lies in favour of the view that the cheque leaf was subsequently filled showing the amount as Rs.21,200/- which, even according to the complainant, would include the amount due from Prasad. In such circumstances, it cannot be found that the amount shown in Ext.P1 was actually due from the accused. So it must necessarily follow that Ext.P1 was not executed by the accused to discharge the debt due from him. The demand was made claiming the entire amount shown in Ext.P1 from the accused. So much so, the learned Magistrate was perfectly justified in holding that the complainant has failed to establish the offence under Section 138 of the N.I.Act. The acquittal is thus confirmed. In the result, this Criminal Appeal is dismissed. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.64/05 5 Crl.A.64/05 6