IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 CRL.A.No. 319 of 1999 CC.333/1997 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... APPELLANT/PETITIONER: SREEDHARAN NAIR SREEVILASOM HOUSE NELLIKKAL MURI KOIPURAM VILLAGE BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENTS: 1. P.CHELLAPPAN, PULLELIL HOUSE MUNDAMALA, PURAMATTAM VILLAGE 2. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY ADV. SRI.S.SUBHASH CHAND PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.319 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. He impugns the order of acquittal passed by the trial court holding that Ext.P1 cheque was not supported by consideration. It was further held that the cheque was not issued in discharge of a legally recoverable debt. 2. The case of the complainant was that respondent No.1/accused had borrowed a sum of Rs.35,000/- and issued Ext.P1 cheque towards discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory notice was issued demanding payment, the accused failed to repay the same. 3. The complainant got himself examined as PW1 and the Manager of the Bank was examined as PW2. Exts.P1 to P8 were also marked on his side. There was no oral or documentary evidence on the side of the defence. Crl.A.No.319 OF 1999 :: 2 :: 4. While considering the oral and documentary evidence on record, the learned Magistrate noticed that the complainant had admitted that Ext.P1 cheque was issued as security for the loan advanced by him. He further admitted that he had advanced a sum of Rs.23,000/- to the accused and obtained a promissory note from him for the said amount. It had come out in evidence that the complainant had instituted a suit for recovery of the above mentioned sum of Rs.23,000/- from the accused before the Munsiff Court, Thiruvalla on the basis of the promissory note. 5. But the learned Magistrate noticed that the complainant had allegedly advanced a sum of Rs.35,000/- without obtaining a promissory note as in the other case. Further, the complainant had not adduced any evidence to show that the present prosecution was not the one in respect of which he had instituted the suit. In short, the learned Magistrate found that the complainant had not succeeded in establishing that Ext.P1 cheque was supported by any consideration, particularly in view of the definite case of the accused that a blank signed cheque Crl.A.No.319 OF 1999 :: 3 :: leaf (Ext.P1) was delivered by him to the complainant at the time when he had borrowed a sum of Rs.23,000/-. According to the accused, the said blank cheque was delivered to the complainant in addition to the promissory note in connection with the above transaction as insisted by the complainant. Therefore, in my view the learned magistrate was justified in holding that the complainant had not discharged the burden cast upon him, particularly on the face of the specific contention raised by the accused that Ext.P1 cheque was delivered only as a security in connection with the transaction involving a sum of Rs.23,000/-. Admittedly the complainant had instituted a suit for recovery of the said amount. Having heard learned counsel for the appellant and having perused the materials available on record, I do not find any reason to interfere with the order of acquittal passed by the court below. Therefore, the appeal fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) jes