IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRL.A.No. 1334 of 2003(C) --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.85/2003 Dated 20/06/2003 CRA.822/2001 of ADDL.SESSIONS COURT, PARAVUR .................... APPELLANT/RESPONDENT/COMPLAINANT: ---------------------------------------------------- V.J.VARGHESE, S/O. JACOB, VADASSERY VEEDU, MACHANTHURUTHU, VADAKKEKARA P.O. BY ADV. SRI.K.VINOD CHANDRAN RESPONDENTS/APPELLANT/ACCUSED & STATE : ----------------------------------------------------------- 1. IBRAHIM, VALIKKAKATHU VEEDU, CHANTHIRUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pac A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1334 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 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 trial court found respondent No.1/accused guilty and convicted and sentenced him to undergo simple imprisonment for three months and to pay Rs.50,000/- as compensation under Section 357(3) of the Code. However the above order of conviction and sentence was set aside by the Sessions Court in appeal and the accused was acquitted. 2. The case of the complainant before the trial court was that the accused owed a sum of Rs.7,62,190/- to him in connection with purchase of sea food from him during 1996. The accused had issued Ext.P1 cheque dated December 29, 1997 for Rs.4,62,190/- towards the outstanding liability. But the said cheque was dishonoured when it was presented for encashment due to insufficiency of funds in the account of the accused. Though a statutory notice was issued demanding payment, it did not evoke any response. 3. The complainant was examined as Pw.1 and Exts.P1 to P6 were marked on his side. The accused got himself examined as DW.1 and Exts.D1 to D3 series were marked on his side. 4. The defence set up by the accused was that a blank signed cheque was handed over by him to the complainant as security in connection with purchase of sea food. He further contended that the entire liability in connection with the business transaction had been discharged by him. It Crl.A.1334/2003 2 was further contended that the blank cheque given as security was misused by the complainant for launching the present prosecution, even after receiving the entire money from him. 5. The trial court accepted the case of the complainant and held that Ext.P1 cheque was issued in discharge of a legally enforceable debt. The learned Magistrate, of course , noticed that there was inconsistency in the version given by the complainant in the course of his examination at various stages. 6. SIt is pertinent to note that the accused had produced Exts.D1 to D3 series of vouchers (32 in number) evidencing payment of huge sums of money to the complainant. The complainant had admitted his signature in these vouchers and stated that he had received the money indicated in those vouchers. But according to him the payments covered under the above vouchers were in relation to the business transactions of the year 1996. 7. It may also be pertinent to note that the case of the complainant in his complaint was that a sum of Rs.7,62,190/- was due from the accused in connection with purchase of prawns during the year 1996. He had admitted that he was having business transaction with the accused since 1975. He further admitted that he received Rs.3 lakhs from the accused out of the total amount of Rs.7,62,190/-. Ext.P1 cheque was issued for the balance amount of Rs.4,62,190/-. In the course of cross examination, the complainant had stuck to the above version. But later, he stated that the amount payable by the accused was in relation to the transaction of December 1997. He also asserted that no amount for the period 1996 was due from the accused. He could not also say what was the total value of prawns sold to the accused during 1997. He conceded that he never used Crl.A.1334/2003 3 to maintain any account. 8. Having gone through the deposition of Pw.1 carefully, I am satisfied that the learned Sessions Judge was justified in disbelieving the case of the complainant, particularly since he had admitted receipt of money covered under the 32 vouchers which were produced as Exts.D1 to D3 series. The inconsistency in the case of the complainant was further confounded when he was examined further after recalling him under Section 311 of the Cr.P.C. The impression one gathers from the deposition of Pw.1 is that the complainant himself was totally confused about the transaction between him and the accused and particularly about the amounts due from the accused. The accused, in my view, had rebutted the presumption available to the drawee of the cheque under Section 139 of the Act. The learned Sessions Judge had re-evaluatd the oral and documentary evidence in a meticulous manner. 9. Having considered the entire materials on record and having perused the two orders passed by the courts below, I am satisfied that the view taken by the learned Sessions Judge is more reasonable and acceptable. In that view of the matter , I do not find any reason to interfere with the order of acquittal passed by the learned Sessions Judge. The appeal fails and it is accordingly dismissed. A.K. Basheer Judge. an. Crl.A.1334/2003 4