IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 CRL.A.No.1819 of 2003(D) ------------------------------- ORDER IN CRL.L.P.509/2003 Dated 30/10/2003 CC.1040/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT: COMPLAINANT: --------------------------------- DEVASSIKUTTY, S/O. PURATHARAPILLY ANTONY VELUTHUR VILLAGE, DESOM, THRISSUR. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENTS: ACCUSED & STATE: ----------------------------------------- 1. K. REGHA, W/O. K. NARAYANAN, KUNDIL HOUSE, VELUTHUR VILLAGE, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1819 of 2003 ------------------------------------------------ Dated this the 14th day of January, 2008 JUDGMENT The appellant is the complainant in C.C.1040/01 on the file of the Judicial First Class Magistrate's Court-II, Thrissur taken cognizance of for an offence under Section 138 of the N.I. Act. The appeal is filed with leave assailing the acquittal of the first respondent/ accused under Section 255(1) of the Criminal Procedure Code. 2. It is the case of the appellant that the first respondent borrowed an amount of Rs.35,000/- from him and for discharging the said liability she issued Ext.P1 cheque and on presentation of the cheque for collection it was returned dishonoured for want of sufficient funds in the account of the first respondent/accused; that statutory notice was issued to the first respondent intimating her Crl. Appeal No.1819 of 2003 -2- of the fact of dishonour of the cheque and demanding amounts covered by the cheque but she has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and hence, the complaint. 3. The learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act and on appearance of the first respondent/ accused pursuant to issuance of summons she was questioned reading out the particulars of the offence and explaining it to her. Thereupon, she pleaded not guilty and consequently a trial of the case was conducted by the court below. 4. On the side of the appellant/ complainant, PW1 was examined and Exts.P1 to P6 were got marked. On the side of the defence, D1 and D2 were got marked though PW1. On the appellant closing his evidence the accused was questioned under Section 313 Crl. Appeal No.1819 of 2003 -3- Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against her and maintained that she is innocent. According to her, there was no monetary transaction between the appellant and herself and a cheque was being issued through her husband and her husband has settled the transaction as well and that no amount is due from her to the appellant. On the defence side, the husband of the first respondent tendered evidence as DW1. 5. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid; found that the case of the appellant is not true and consequently, acquitted the first respondent/accused under Section 255(1) Cr.P.C finding that she has not committed offence under Section 138 of the N.I. Act. Hence, this appeal by the aggrieved complainant with leave. Crl. Appeal No.1819 of 2003 -4- 6. It is contended before me by the learned counsel for the appellant that the transaction the appellant had with the husband of the first respondent is independent of the monetary transaction between the appellant and the first respondent and that Exts.D1 and D2 has no bearing at all to the transaction in issue covered by Ext.P1 and that the court below was wrongly holding that Ext.P1 is not one issued by the first respondent in discharge of debt. 7. The case of the appellant in the complaint filed by him in the court below is that himself and the first respondent are natives of the same place and are acquaintances and the first respondent received for her domestic purposes an amount of Rs.35,000/- from him and on demand for return of the said amount, the first respondent issued Ext.P1 cheque. Obviously, in Crl. Appeal No.1819 of 2003 -5- the light of the above pleadings it can be seen that the case of the appellant is that Ext.P1 cheque was issued not when the money was advanced but when repayment of the amount was demanded. The appellant has deposed in cross examination when examined as PW1 that it was the husband of the accused who asked for advancing loan but the amount was being paid to the first respondent. To the specific question put to him as to why the amount was paid to the first respondent when her husband asked for loan the answer is that the first respondent asked and he gave it. It is further, stated by him in cross examination that the amount was being paid by him to the first respondent at his house and that while making payment of the amount there was none else. This means that his case is that the first respondent went over to his house and asked for the amount and he gave it to her. It Crl. Appeal No.1819 of 2003 -6- is strange that when the husband of the first respondent was the one who asked for loan, without any explanation as to why the husband is not coming and the wife alone went over to the house of the appellant, he made payment of an amount of Rs.35,000/- to her and that too without any record whatsoever. Ext.D1 is a document that is admitted by the appellant when he was confronted with the said document in cross examination. That is a document dt.20/11/2000 to the effect that the amount of Rs.16,500/- due from the husband of the first respondent to him was to be paid without interest in one month and that on such payment all documents received from him (the husband of the accused) will be returned. This shows that the appellant is not one who advances money without receiving documents in evidence thereof and that is why he has given Ext.D1 letter to the effect that on payment of Crl. Appeal No.1819 of 2003 -7- Rs.16,500/- all documents obtained from him would be returned. According to him, all documents received from the husband of the first respondent is returned as he repaid the entire Rs.16,500/- made mention of in Ext.D1. If that be so, one fails to understand how and why an amount of Rs.35,000/- was advanced by the appellant to the first respondent without any record and that too pursuant to the husband of the first respondent asking for advancing money. There is no explanation coming from the appellant as to why he has advanced amount without any record to the first respondent though he is one who is in the habit of receiving records in evidence of advancing loan as could be evidenced from Ext.D1. The above circumstance, probabilises the first respondent's contention that she was issuing the cheque through her husband for money transaction he had with the appellant Crl. Appeal No.1819 of 2003 -8- and that all those transactions are settled and that the appellant is taking undue advantage of Ext.P1 cheque which he had not returned. The presumption available in favour of the appellant who is the holder of Ext.P1 cheque under Section 139 of the N.I. Act stands rebutted in the circumstances and the acquittal of the accused in the circumstances finding that he is not guilty of the offence punishable under Section 138 of the N.I. Act by the court below has only to be confirmed. There is no merit in this appeal. 8. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-