IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 CRL.A.No. 155 of 2002() ----------------------- CC.571/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... APPELLANT(S): COMPLAINANT. -------------------------- P.A.IBRAHIM KUTTY, JR. OPERATOR, COCHIN REFINERIES, QRTER NO.111/H- JWALAGIRIL, AMBALAMUGHAL. BY ADV. SRI.P.K.JOSE RESPONDENT(S): RESPONDENTS. --------------------------- 1. PALLICHIRA KOCHUNNI HAMSA, PALLICHIRA HOUSE, KARIMUGHAL, PUTHENCRUZ P.O., ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI V.TEKCHAND. SRI.PAUL K.VARGHESE FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.155 OF 2002 ---------------------------------------------- Dated, 12th February, 2009. JUDGMENT In a private prosecution for the offence punishable under section 420 IPC, at the instance of the complainant, the trial court acquitted the accused under section 248(1) Cr.P.C. and aggrieved by the said order, the complainant preferred this appeal. 2. The case of the complainant is that the accused borrowed a sum of Rs.11,000/- from the complainant on 10.3.98 and towards the discharge of the said debt, a cheque dated 10.3.98 for Rs.11,000/- was paid on the date of borrowal itself. According to the complainant , when he presented the cheque for encashment on 8.6.98, the same was dishonoured with an endorsement to the effect that “account closed on 25.10.97” However, by a lawyer notice dated 9.6.98 at the instance of the complainant, the accused was directed to pay the amount and the said notice was returned with the endorsement, “addressee out of station, present address not known”. Hence, according to the complainant, no amount was paid and hence he approached the court below with the allegations under the N.I.Act as well as cheating. Thus in the complaint, it is prayed to convict the accused for the offence punishable under section 138 of CRL.A. 155/2002 -:2:- the N.I.Act as also under section 420 of IPC. On the basis of the sworn statement, the complaint was taken on file as C.C.No.571/98 on 25.7.98 for the offence under section 138 of the N.I.Act alone. On appearance of the accused, he denied the allegations for the offence under section 138 of the N.I.Act. During trial, PWs 1 and 2 were examined from the side of the complainant and Exts P1 to P6 were produced and marked. Subsequently, the complainant preferred a petition to recall PW1 for further examination on the ground that Section 420 IPC is attracted and thus thereafter, to alter the charge into one under section 420 IPC. After framing the charge under section 420 IPC, the same was explained and read over to the accused and he pleaded not guilty. During the trial, PW1 was made available to re-cross for and on behalf of the defence. As there was no demand for re-cross PW2, he was not summoned. The incriminating circumstances which brought on record during the time of evidence of the complainant, put to the accused under section 313 Cr.P.C.and he denied the same. According to the accused, in the year 1996, he had borrowed a sum of Rs.5000/- from the complainant and that amount was repaid in the year 1996 itself. According to the defence, the blank cheque was obtained at the time of availing the loan from the complainant and the present case was instituted on the basis of the said blank cheque, as the accused failed to pay interest for the same CRL.A. 155/2002 -:3:- availed by him from the complainant. On the basis of the rival pleadings and the materials on record, the trial court formulated 4 points for its determination. The first point was whether the accused issued Ext.P1 cheque to the complainant with the dishonest intention of cheating him. The second question was whether the accused cheated the complainant by issuing the cheque drawn on an account which has already been closed. After considering the matter elaborately, the trial court found that the complainant has failed to prove the case against the accused beyond doubt and accordingly found that the accused is not guilty and he is acquitted. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard the counsel appearing for the appellant as well as the respondent. 4. The learned counsel for the appellant submitted that the complainant has established the case of cheating by adducing oral evidence of the complainant himself as PW1 and PW2, the branch manager and by producing the documents which are Ext.P1 cheque, Ext.P2 cheque dishonour memo, Ext.P3 demand notice, receipt of notice by the accused as per Ext.P4, and Ext.P5 ledger extract of the account book etc. Thus on the basis of the above documents and the evidence of PWs 1 and 2, the learned counsel submitted that the accused has the CRL.A. 155/2002 -:4:- intention from the very beginning to cheat the complainant. In order to substantiate the above argument, the learned counsel very much pressed into service of the Ext.P5 ledger extract of the account and also the evidence of PWs. 1 and 2. On the other hand, the learned counsel for the respondent pointed out that the material contradictions and infirmities occurred in the evidence of PW1 itself are sufficient to justify the finding arrived on by the court below. Inviting my attention to the deposition of PW1, the learned counsel pointed out that, even according to PW1, he had admitted that no cheque was issued after the closing of the account. According to the learned counsel, PW1 has further stated that even he was not aware of the date of closing of the account. Denying the case of the complainant in the complaint, PW1 deposed before the court that on 10.3.98, the accused has not borrowed Rs.11,000/- from the complainant. Thus the learned counsel submitted that the finding of the court below is based upon materials and evidence on record and no interference is called for. 5. I have carefully considered the arguments advanced by the both the counsel for the appellant as well as the respondent and also gone through the records, especially , the deposition of PW1. Thus on going by the impugned judgment itself, it can be seen that each and very observations and findings are arrived at on the basis of the evidence and CRL.A. 155/2002 -:5:- materials on record. As observed by the trial court, the averments of the appellant/complainant in the complaint is that the accused borrowed a sum of Rs.11,000/- from the complainant on 10.3.98 and the accused issued a cheque dated 10.3.98 for the said amount. But when PW1 was examined, he deposed that he had not given any money to the accused on 10.3.98. He had further gone to the extent by saying that in the year 1997, he had lend Rs.22,000/- and out of that, Rs.11,000/- was returned to him by the accused. That is a case which is not pleaded in the complaint. So regarding the actual transaction, absolutely there is no evidence and proper pleadings. Therefore, the finding of the court that the contradiction in the version of the complainant cuts the root of the complainant's case, assumes much significance in the light of the version of the complainant that he does not remember the date of issuance of Ext.P1 cheque, appears to me correct and supported by materials on record. In paragraph 8 of the impugned judgment, the trial court observed that the date of issuance of Ext.P1 cheuqe is an important aspect in the present case. The trial court further observed that the consequence of issuing a cheque after closing the account and the consequence of issuing a cheque and then closing the account are different. The trial court took much strain to make such observation because of the version of PW1, the complainant, when he was examined CRL.A. 155/2002 -:6:- in the court. He had deposed, to a mooted question as to whether the cheque was given before or after 25.10.97, that he was not aware of the date and had stated that it was in the year 1997. Then after considering the evidence on record, the trial court found that there is no evidence to prove the case of the complainant that the accused had issued Ext.P1 cheque with the dishonest intention of cheating the complainant. All the evidence on record is mutually contradictory in nature and it is also against the pleadings in the complaint. Thus finally the trial court found that the complainant has gone to the extent to say that he has not lent any money to the accused on 10.3.98 and further gone to the extent to the effect that the averments in the complaint are false. Thus on the basis of the above materials, the trial court found that the complainant has miserably failed to prove the case and allegations against the accused beyond doubt and accordingly the accused is acquitted. I find no reason to interfere with the above order. in the result, there is no merit in the appeal and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.A. 155/2002 -:7:- V.K.MOHANAN, J. CRL.A. No.155 OF 2002 Judgment Dated:12.2.2009