IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 CRL.A.No. 114 of 2000() ----------------------- CC.41/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... APPELLANT: ------------------ C.P.CHANDRAN, S/O.GOV8INDAN, KALLUVALAPPU, P.O.CHERUVANCHERY. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE SEBASTIAN RESPONDENTS: -------------------- A. AMBUJAKSHI, ADIYERI HOUSE, PARIMADAM, P.O. NEW MAHE. BY SRI.V.RAJAGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 114 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2008. Judgment This appeal against acquittal is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The court below acquitted the respondent/accused holding her not guilty, since according to the learned Magistrate the appellant/complainant had failed to prove that the cheque was issued by the accused in discharge of a legally dischargeable debt or liability. 2. The case of the complainant in brief was that the accused had borrowed a sum of Rs,75,000/- from him on January 26, 1996 agreeing to repay the same on December 19, 1998. It was further contended that the accused had issued Ext.P2 cheque in discharge of the said liability which was dishonoured on presentation for encashment. Though a statutory notice was issued demanding payment, it was returned unserved and the money was not paid also. Hence the complaint. 3. Pws.1 and 2 were examined on the side of the complainant and Exts.P1 to P7 were also marked. The accused got herself examined as DW.1 and her witness was examined as DW.2. The learned Magistrate on an elaborate consideration of the oral and documentary evidence on record, found that the evidence of the complainant was not good enough to inspire confidence in the court. According to the learned Magistrate the complainant had failed to prove that Ext.P2 cheque was supported by consideration. It Crl.A.114/2000 2 was also held that there was no proper service of the statutory notice on the accused as contemplated under law. 4. Learned counsel for the complainant contends that appreciation of evidence by the court below is totally faulty and far from satisfactory. He contends that the accused had not made any attempt to substantiate her contention that she had had no financial transaction with the complainant. It is also pointed out by the learned counsel that the court below was not justified in denying an opportunity to the complainant to examine the Postman, for which purpose an application was in fact filed. The said application was dismissed by the learned Magistrate without any valid or justifiable reasons. 5. As mentioned earlier, the case of the complainant was that the accused, who is a lady in her late 50's at the relevant point of time had borrowed a sum of Rs.75,000/- from him on January 26, 1996 with a promise to re-pay it on December 19, 1998. The complainant when examined as Pw.2 candidly admitted that he did not know the name of the husband of the accused nor that of her son. According to the complainant one Chathu had taken the accused to his house. The complainant did not have a case that he had any previous acquaintance with the accused. He had given the money to the accused even without insisting for any receipt. Further, the complainant had no case that Ext.P2 cheque was issued by the accused at the time when the money was borrowed by the accused. It is significant to note that Ext.P2 cheque was dated December 19, 1998. The complainant had no explanation as to why he did not choose to obtain any receipt for the Crl.A.114/2000 3 payment made by him or under what circumstances he chose to wait for nearly 3 years to get Ext.P2 cheque from the accused. 6. It was in the above context the court below had tested the credibility and veracity of the case of the complainant. The learned Magistrate noticed that the oral testimony of Pw.2, the complainant, did not inspire any confidence especially since the writings in Ext.P2 cheque appeared to be of recent origin and in different ink from that of the signature of the drawer. 7. In this context it may be pertinent to note that the specific case of the accused was that she had had absolutely no acquaintance with the complainant at any point of time nor had she borrowed any money from the complainant as alleged. The accused set up a defence that she had borrowed a sum of Rs.15,000/- from one Karunan and at that time Sri.Karunan had collected 2 or 3 blank signed cheques from her as security. While examined in court as DW.1 the accused had asserted that Sri.Karunan had not returned the signed blank cheques to her though she had discharged a major portion of the liability with interest thereon. The evidence of Dw.2 also supported the above case of the accused. 8. However learned counsel for the complainant submits that the accused was not entitled to take up such a contention since she had admitted her signature in Ext.P2 cheque. Learned counsel contends that the complainant as drawee of the cheque is entitled to get the benefit of Sections 118 and 139 of the Act. But I am afraid, in the peculiar facts and circumstances of this case, the complainant will not be entitled to take up such a contention. As rightly noticed by the Crl.A.114/2000 4 learned Magistrate the complainant had not adduced any credible evidence to show that Ext.P2 cheque was supported by consideration. His case that he had advanced a sum of Rs.75,000/- to a lady like the accused with whom he had had no prior acquaintance cannot be believed at all and that too without obtaining any acknowledgment or a cheque at least as security. Significantly, the complainant had not examined Sri. Chathu at whose instance he had paid the money to the accused. In the absence of any evidence to show that Ext.P2 cheque was supported by consideration, I am not inclined to upset the finding entered by the trial court especially since this is an appeal against a judgment of acquittal. 9. The learned Magistrate had found that there was no proper service of the statutory notice on the accused. It is seen from the postal seal on the cover of the registered lawyer notice that it was returned to the sender on January 23, 1999. But curiously, there is an endorsement on the cover that intimation was given to the addressee on January 25, 1999. As rightly noticed by the learned Magistrate anybody could have made such an endorsement. At any rate, the said endorsement could not have been correct for the obvious reason that even prior to the date of intimation, the postal cover had been sent back to the sender. In that view of the matter also I am satisfied that the finding entered by the court below need not be upset. There is no merit in the appeal. It is accordingly dismissed. A.K. Basheer an. Judge.