IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 CRL.A.No. 74 of 2011() ---------------------- ST.1348/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA .................... APPELLANT(S): COMPLAINANT ------------------------- JOHN P.DANIEL,44 YEARS, S/O.P.E.DANIEL,POOVANNUVILAYIL VEEDU, V.KOTTAYAM PO,KOZHENCHERRY TALUK,PATHANAMTHITTA. BY ADV. SRI.M.T.SURESHKUMAR SRI.R.RANJITH RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. V.K.VILASINI,AGED 58 YEARS, W/O.P.N.SATHYAN, SURABHI,IYTHALA BHAGAM, MANNARATHARA KADAVU, KONNI. 2. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.74 of 2011 ----------------------------------------------- Dated 18th January, 2011. J U D G M E N T This appeal arises from an order of acquittal. 2. The complainant/appellant filed a complaint against first respondent/accused alleging offence under Section 138 of the Negotiable Instruments Act on the allegation that accused borrowed Rs.10,00,000/- on 4.2.2008 from complainant and in discharge of the said liability, he issued a cheque, Ext.P1 drawn on his bank. The cheque was dishonoured on presentation due to insufficiency of funds and a lawyer notice was issued demanding payment of money. The notice was refused by accused and the amount was not paid. Hence, the complaint was filed. 3. The evidence adduced in this case consists of oral testimony of PW1 and Exts.P1 to P5 on the side of prosecution. The accused examined DW1 and DW2 and marked Exts.D1 and D2 series. The accused stated that she obtained a loan of Rs.50,000/- from S.N.Bankers and as a security, cheque from State Bank of India was given to the said institution. When this case was filed, she approached the above bankers, but it was in Crl.Appeal No.74/11 2 a winding up stage due to financial crisis. She understood that depositors forcibly took away documents from there. In short, the contention is that she has no liability as alleged. 4. On an analysis of the evidence in detail, the trial court found that Ext.P1 cheque was not drawn and issued by accused in discharge of any liability to the complainant. The trial court relied upon the lack of financial capacity of appellant to raise the amount to pay to accused. The trial court found that the contention raised by accused that PW1 is not reliable is a probable one. In paragraph 5, the trial court entered the following findings : “Though PW1 stated that he was having acquaintance with the accused he does not know whether she was having any job. He stated that he did not enquire about that. Even though PW1 stated that the money was lent to the accused on the recommendation of the conductor of his bus, he was not examined as a witness. It would also show that PW1 was not having that much acquaintance with the accused. Then it is doubtful that he was lent a huge amount to such a person. It is further contended that PW1 was not having financial viability to lent such a huge amount. He admitted that he was not paying income tax. Admittedly he obtained H.P. Loan of Rs.13,50,000/- for conducting bus service and there are dues in the loan. When asked about his financial capacity PW1 stated that he used to get money from his cousins Jacob John and Shaji P.Daniel, who are working in Sharjah and Dubai respectively, through UAE Exchange for Crl.Appeal No.74/11 3 his business. DW2 is the Manager of the UAE Exchange, Pathanamthitta Branch. He produced Ext.D2 series statement of accounts of the account of the complainant. As per the above said document in the year 2008 there were only two transactions, i.e., on 13.10.2008 Rs.16000/- and on 19.11.2008 Rs.50,000/-. The total transaction carried out through the above said account from 28.07.05 till 19.11.08 is for Rs.2,41,000/-. Thus it is very clear that the version of PW1 that he withdrew money from UAE Exchange during the alleged period of transaction is absolutely false. Relying on these aspects the counsel for the defence contended that PW1 is absolutely an untrustworthy witness. His version is unbelievable and ins uch a circumstance the contention of the defence has to be accepted as a probable one.” 5. Appellant's counsel was heard. But, he could not substantiate that the findings of the trial court are unsustainable. I do not find any reason to interfere in the order of acquittal. There is no ground to admit the appeal. This appeal is dismissed. K.HEMA, JUDGE. tgs