IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 CRL.A.No. 527 of 2001() ----------------------- CC.1271/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT(S)/COMPLAINANT: -------------- VIJAYARAJAN, S/O.ITHIKKATT SANKARAKUTTY,, KUNDALIYOOR DESOM, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT RESPONDENT(S)/ACCUSED: --------------- UNNIKRISHNAN, S/O.KOLAYIKKARAN SANKARANARAYANAN, KUNDALIYOOR DESOM, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK. ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.A.NO.527 OF 2001 --------------------------------------------- Dated 18th May, 2010 JUDGMENT Appellant, complainant in C.C.1271/1998 on the file of Judicial First Class Magistrate, Chavkkad filed this appeal challenging the order of acquittal of first respondent/accused. Appellant filed the complaint alleging that first respondent borrowed Rs.1,10,000/- on 1/6/1998 agreeing to repay the same and when the amount was demanded he issued Ext.P1 cheque dated 7/8/1998 drawn in the account maintained by first respondent in Federal Bank, Vatanappilly Branch and when the cheque was presented for encashment, it was dishonoured and even though Ext.P4 lawyer notice demanding the amount was received by first Crl.A.527/01 2 respondent instead of paying the amount he sent Ext.P7 reply denying the liability and first respondent thereby committed an offence under Section 138 of Negotiable Instruments Act. First respondent pleaded not guilty. Petitioner was examined as PW1 and Exts.P1 to P15 were marked on his side. Petitioner is admittedly one of the partners of Dhanalakshmy Kuries and Loans, Vatanappilly. Managing Partner of the firm was examined by the first respondent as DW2 and the counsel who issued Ext.D1 notice for Dhanalakshmi Kuries and Loans to the first respondent was examined as DW1. Learned Magistrate on the evidence found that appellant failed to establish that Ext.P1 cheque was issued towards discharge of the loan of Rs.1,10,000/- as claimed by the appellant and found the first respondent not guilty. Case of Crl.A.527/01 3 the appellant is that learned Magistrate did not properly appreciate the evidence and on the evidence it should have been found that first respondent committed the offence under Section 138 of Negotiable Instruments Act. 2. Learned counsel appearing for the appellant was heard. Learned counsel vehemently argued that evidence of the appellant as PW1 with Ext.P1 establishes that Ext.P1 cheque was issued towards the amount borrowed and learned Magistrate was not justified in disbelieving the evidence of PW1. It is argued that appellant paid the amount without getting any record from the first respondent as he is a neighbour and defence raised by first respondent that he was a surety to Krishnadas was disproved by the evidence of DW2 and Ext.P14 kuri kaichit executed when the Crl.A.527/01 4 Mohandas, a subscriber to the kury received the chitty amount and therefore, the order of acquittal is to be set aside. I had gone through the evidence of PW1, Dws,1 and 2, Exts.P1, P7 and D1. Though complaint does not disclose that appellant is a partner of Dhanalakshmy Kuries and Loans, when examined as PW1 this fact was admitted. Even though in Ext.P7 reply notice first respondent contended that he was a surety to Krishnadas who was a subscriber to chitty with a Sala of Rs.1,08,000/- and when chitty amount was received by Mohandas, as demanded a signed blank cheque was given by first respondent as security to the chitty company and it was misused by the appellant, even when appellant was examined as PW1, he has no case that first respondent was not a surety to one of their Crl.A.527/01 5 subscribers. At best, it could be said that DW2 made an attempt to show that first respondent was not a surety when chitty amount was given to Mohandas, as Ext.P14 shows that his sureties were some other persons. Learned Magistrate on verifying the records found that the names of sureties recorded in Ext.P14 were written not on the date of execution of the document but just before its production before the court. Therefore, based on said kaichit it is not possible to hold that first respondent was not a surety to Mohandas. If first respondent was not a surety to Mohandas as now canvassed, PW1 could have set up this case from the very beginning as that case was pleaded in Ext.P7. Therefore, based on Ext.P14 or the evidence of DW2 the defence case cannot be disbelieved, especially when DW2 did not Crl.A.527/01 6 deny that first respondent was a surety. He only said that without verifying the records he cannot say. 3. The case that appellant who is a partner of a chitty and finance firm granted a loan of Rs.1,10,000/- to the first respondent without getting any records, is highly improbable. Apart from the allegation in Ext.P4 notice and the interested testimony of PW1, there is no evidence to prove that any such amount was borrowed by the first respondent. On the other hand, as rightly found by the courts below, first respondent has established by production of Ext.D1 notice that Rs.1,20,000/- was demanded by the chitty company of the appellant from the first respondent, without even disclosing whether he is a surety or subscriber. When the entire Crl.A.527/01 7 facts and circumstances are appreciated in the proper perspective , view taken by the learned Magistrate is definitely proper and legal. I find no reason to differ with the same. Appeal therefore fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.