IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 CRL.A.No. 701 of 2005() ----------------------- STC.104/2004 of CHIEF JUDITIAL MAGISTRATE COURT, THALASSERY .................... APPELLANT(S): COMPLAINANT ------------------------- A.K.SANKARAN, S/O.KUNHIRAMAN, ARAYAKANDY HOUSE, P.O.VILAKKOTTUR THUVAKKUNNU, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. P.D.DAMODHARAN, S/O.POKKEN, PUTHENPURAYIL HOUSE, P.O.VILAKKOTTUR, THUVAKKUNNU, THALASSERY TALUK, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.P.HAREENDRAN R2 BY PUBLIC PROSECUTOR SRI. ALEX. M. THOMRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smvd N.K.BALAKRISHNAN, J ----------------------------------------- Crl. Appeal No. 701 of 2005. ------------------------------------------ Dated this the 8th day of August, 2011. JUDGMENT The complainant is in appeal. His complaint against the accused/respondent alleging offence u/s 138 of Negotiable Instruments Act ended in acquittal u/s 255(1) Cr.P.C. The case of the complainant was that the accused had borrowed an amount of Rs.20,000/- and in discharge of that debt, Ext.P1 cheque was issued by him which on presentment was bounced with an endorsement “account closed”. Statutory notice was sent to which no reply was sent by the accused and the amount mentioned in the notice was also not paid. Hence the complaint was filed. 2. The complainant got himself examined as PW1. Exts.P1 to P5 were marked. The accused got himself examined as DW2. The Manager of the bank was examined as DW1. Exts.D1 to D4 and also Ext.X1 were marked. 3. Learned Magistrate found that the complainant has failed to prove that the accused committed the offence punishable u/s 138 of the N.I. Act. Crl.Appeal No. 701 of 2005 -: 2 :- 4. The learned counsel for the complainant/appellant would submit that no reply was sent by the accused to the statutory notice and it was only at a later stage the accused put forward a plea that Ext.P1 cheque was one of the 4 cheque leaves handed over by him to the complainant as mentioned in Ext.D4 agreement. The learned counsel would submit that Exts.D1 to D3 and Ext.P1 are serially numbered Ext.P1 cheque bears the date 06.02.2004, Ext.P1 was not filled-up by him. The case of the accused is that Ext.P1 cheque leaf was one of the 4 cheque leaves made mention of the amount in Ext.D4 agreement. 5. The learned counsel for the complainant would submit that the specific case mentioned in Ext.D4 is that all the four cheques mentioned in Ext.D4 were for Rs.15,000/-, each and Ext.P1 was one among the 4 cheques mentioned in Ext.D4 which is of April 2003, whereas Ext.P1 cheque bears the date 06/02/2004 and the amount shown therein is Rs.20,000/-. According to the appellant Ext.P1 has nothing Crl.Appeal No. 701 of 2005 -: 3 :- to do with the transaction mentioned in Ext.D4. The learned counsel would submit that if as a matter of fact the amount payable as per the cheques mentioned in Ext.D4 was actually paid by the accused then certainly he would have sent a notice or taken action against the complainant for getting return of the cheque leaf which according to the accused was un-lawfully retained by the complainant. Therefore according to the complainant the conduct of the accused itself would belie the case advanced by the accused. 6. It is pertinent to note that the complainant did not take steps to summon the bank officials to produce the other cheques which were stated to have been issued by the accused, if as a matter of fact Exts.D1 to D3 were not the cheques mentioned in Ext.D4. That may assume relevance since the case of the complainant was that to discharge the debt mentioned in Ext.D4, the accused had given 3 cheques of Rs.20,000/- each . If so there must be three other Crl.Appeal No. 701 of 2005 -: 4 :- cheques of Rs.20,000/- each either with the complainant or those cheques might have been presented and encashed or presented and returned from the bank. There is no satisfactory evidence regarding the same. It was not disputed that the amount of Rs.60,000/- mentioned in Ext.D4 was received by the complainant which according to the accused was paid and Exts.D1 to D3 were the cheques which were later returned by PW1 to the accused when the sum of Rs.60,000/- was paid by the accused. It is also mentioned that even according the complainant, the amount and the payee's name were filled-up in Ext.D1 to D3 by himself. Though the case of the accused was that Ext.P1 was also filled up by PW1 himself, PW1denied that suggestion. It is seen that the name of the payee written in Ext.P1 is not in the handwriting of the person who put the date and amount in words and figures in it. Taking all these aspects, learned Magistrate was not inclined to accept the evidence given by PW1 to hold the prosecution case true. Crl.Appeal No. 701 of 2005 -: 5 :- Except the interested testimony of PW1 there is no other evidence to prove the lending of money as stated by PW1. Considering all these aspects I find that the prosecution has failed to prove that Ext.P1 was issued by the accused in discharge of a legally enforceable debt/liability. The learned counsel for the complainant made a request to remand the matter to the trial court to afford an opportunity to the complainant to adduce further evidence. I find, it would be unjust to remand the case now. Seven years have already elapsed. It will not be just or proper to allow the complainant to adduce further evidence now. In the result, this criminal appeal is dismissed. N.K. BALAKRISHNAN, JUDGE smvd