IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 CRL.A.No. 1707 of 2010() ------------------------ AGAINST THE JUDGEMENT IN S.T..774/2007 OF THE CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT(S): -------------- M/S. SREE GOLULAM CHIT AND FINANCE COMPANY(P) LTD., COLLECTION CENTRE, ATTUKAL SHOPING COMPLEX, FORT, THIRUVANANTHAPURAM REPRESENTED BY ITS' MANAGING DIRECTOR, SRI.A.M.GOPALAN, THROUGH HIS POWER OFATTORNEY HOLDER, MR.PRASANTH G.S., S/O.GOPALAKRISHNA PILLAI, AGED 25 YEARS, WORKING AS LEGAL ASSISTANT, M/S.SREE GOKULAM CHIT AND FINAL CO. PVT. LTD., DIVISIONAL OFFICE, T.C.4/1037(2),(3), HEERA PALACE, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.K.S.BABU RESPONDENT(S): --------------- 1. ANIL KUMAR B., SIBI BAKERY, CHENKOTTUKONA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKAUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1707 of 2010 ----------------------------------------------- Dated 6th September, 2010. JUDGMENT This appeal arises from an order of acquittal of first respondent herein under Section 138 of the Negotiable Instruments Act ('the N.I. Act' for short). According to prosecution, the accused had drawn a cheque for an amount of Rs.1,06,000/- for discharge of the debt towards the complainant. The cheque, on presentation, was dishonoured for the reason, 'funds insufficient'. A lawyer notice was issued demanding payment but no amount was paid . Hence, the complaint. 2. The prosecution examined PW1 and marked Exts.P1 to P6. The accused himself was examined as DW1 and marked Ext.D1 in support of his case. 3. Learned Magistrate found, on an analysis of the evidence held that the complainant failed to prove that Ext.P1 cheque was supported by consideration and that the impugned [Crl.Appeal No.1707/2010] 2 cheque was executed by the accused in the context averred in the complaint. Learned Magistrate found that PW1 admitted that the cheque was issued by the accused as a subscriber to the chitty conducted by the complainant company. So, evidently, the liability of the accused can be proved by adducing documentary evidence such as passbook, vouchers counterfoils of receipts etc. But the company did not adduce any evidence to show that amount was due from the accused. 4. Learned counsel for appellant argued that there is sufficient evidence to prove the transaction. He pointed out that Ext.D1 is a ledger extract, which was produced by the complainant to prove that accused had received the amount and hence, it is not correct to say that there are no documents to prove the transaction. However, on a reading of the impugned order, it is seen that Ext.D1 was caused to be produced at the instance of the accused. It is a ledger extract which shows that an amount of Rs.300141/- was paid by accused on 10.7.2008 and as a last instalment, an amount of Rs.4261/- was being paid. The document produced by the [Crl.Appeal No.1707/2010] 3 complainant itself shows the above facts. Hence, learned Magistrate held that it is difficult to believe that Rs.1,06,000/- was due and the cheque was issued for discharge of the said liability and that the complainant failed to prove that any amount was due or payable by the accused who contended that more than what was due by way of chitty instalments was paid to complainant-company. 5. In the above circumstances, the arguments advanced cannot be accepted. There is absolutely no reason to interfere with the above findings. The court below rightly found that appellant failed to prove that Ext.P1 cheque was issued by the accused for the discharge of the liability, as alleged by the complainant. Hence, the order under challenge cannot be said set aside. This appeal is dismissed. K. HEMA, JUDGE. krs.