IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRL.A.No. 22 of 2003() ---------------------- CC.72/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA .................... PETITIONER: COMPLAINANT: -------------------------------------------- V.SAHADEVAN, THUMARAPARAMBIL VEEDU, P.O. KALLELI, KONNI, PATHANAMTHITTA DISTRICT. BY ADV. SRI.RAJESH NAIR RESPONDENT(S): ACCUSED AND STATE: -------------------------------------------------------------- 1. K.VIJAYAN NAIR, MANNADIYIL VEEDU, ULLANNOOR MURI, KULANADA VILLAGE, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J ----------------------------------------- Crl.Appeal No.22 OF 2003 ---------------------------------------- Dated this the 4th day of August, 2011. JUDGMENT The complainant is the appellant. The case filed by him against the accused alleging offence under Section 138 of Negotiable Instruments Act ended in acquittal. The appellant challenges the said order of acquittal. The case of the complainant is that a bus belonging to him was sold to the accused for a total consideration of Rs.1,12,000/- and there was an outstanding balance of Rs.63,000/- payable by the accused to the complainant. To discharge that liability, Ext.P1 was stated to have been issued. When cheque was presented for encashment it was dishonoured due to insufficiency of funds. Statutory notice was sent to which no reply was sent. The amount due was not paid by the accused. Hence the complaint was filed. Crl.Appeal No.22 OF 2003 2 2. The complainant and Bank Manager were examined as PW1 and PW2 and Exts.P1 to P7 were marked. The accused got himself examined as DW1 and Ext.D1 the agreement was also marked. 3. The learned Magistrate found that as per the agreement the bus belonging to PW1 was sold to the accused for a total consideration of Rs.1,12,000/- and on the date of Ext.D1 Rs.27,000/- was paid. The balance amount of Rs.85,000/- was due from the accused. But PW1 during cross examination admitted that he had received Rs.27,000/- each on two occasions and another sum of Rs. 20,000/- and also Rs.2,000/-. Therefore, the learned Magistrate found that PW1 had already received Rs.71,000/- (it must be Rs.76,000/-). Whatever that be the contention advanced by the complainant that a sum of Rs.63,000/- was due from the accused towards the aforesaid transaction was found Crl.Appeal No.22 OF 2003 3 to be not true. The learned Magistrate found that only a sum of Rs.41,000/- was due, on the complainant's own showing. 4. The accused contended that he had only given a signed blank cheque leaf and it was misutilised by the complainant by entering the amount and date as mentioned earlier to file this complaint. To prove that as on the date of alleged execution of Ext.P1 Rs.63,000/- was due from the accused to the complainant could not be successfully proved by the complainant. Since the amount shown in Ext.P1 was far in excess of the amount which alone even according to the complainant was due from the accused, it cannot be said that Ext.P1 was executed in discharge of a legally enforceable debt or liability. The contention that even if the amount due from the accused is found to be less than what as was actually shown in the cheque still Crl.Appeal No.22 OF 2003 4 the accused can be found liable to pay that much amount as compensation cannot be sustained since it is not a civil case were the court can mould the relief. Since it is a criminal case where the accused has to be found guilty of an offence, convicted and sentenced, that argument cannot be accepted. It was not the case of the complainant, when Ext.P1 was presented, that the amount due to him was only Rs.41,000/- and not Rs.63,000/-. No endorsement was made to that effect as required under Section 56 of the Negotiable Instruments Act. The learned Magistrate on a careful examination of the evidence adduced by PW1 and DW1 found that the case advanced by the defence that the amount shown in Ext.P1 was not due to the complainant is more reasonable and acceptable. Since that finding is founded on the evidence adduced by the parties, this Court sitting in appeal will not be justified in reversing Crl.Appeal No.22 OF 2003 5 the same. Hence the order of acquittal is confirmed, In the result, this appeal is dismissed. N.K.BALAKRISHNAN, JUDGE mns