IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 CRL.A.No. 45 of 2008() ---------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.791/2007 Dated 20/09/2007 ST.14/1998 of CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA .................... APPELLANT: COMPLAINANT: ----------------------- RAMAN KARUNAKARAN, KRISHNA NIVAS, ASRAMAM WARD, ALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN RESPONDENTS: ACCUSED & STATE: ----------------------------- 1. SANKUNNI PANKAJAKSHAN, KARUGAPARAMBIL HOUSE, PAZHAVEEDU VILLAGE,ALAPPUZHA 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.T.MOHANAN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------- Crl.A.No.45 of 2008 ------------------------------------------- Dated this the 11th day of January, 2008 JUDGMENT The complainant in S.T.No.14 of 1998 on the file of Chief Judicial Magistrate Court, Alappuzha, a complaint filed complaining of commission, by the first respondent of an offence punishable under Section 138 of Negotiable Instruments Act is the appellant. The trial court after considering the evidence in the case which consisted of oral evidence of PW1 and documentary evidence of Exts. P1 to P5 and Exts. D1 and D2, acquitted the accused finding that he is not guilty of the offence under Section 138 of the Negotiable Instruments Act. It is the said finding and the consequent acquittal that is challenged in this appeal, filed with leave. 2. The case of the complainant is that he advanced an amount of Rs.80,000/- to the first respondent on 21.5.1997 issuing Ext. P1 cheque dated 30.9.1997 and on presentation of the cheque for encashment that was returned dishonoured by the drawee bank for reason of 'insufficiency of funds' in the CRL.A.45/2008 2 account of the first respondent, the drawer of the said cheque. The first respondent disputed of having borrowed any amount on 21.5.1997 as alleged issuing Ext. P1 cheque dated 30.9.1997. According to him, Ext. P1 is a cheque which was issued on an earlier occasion when he availed a loan of Rs.75,000/- from the appellant in relation to which was Ext.D1 complaint filed. Ext. D1 is a similar complaint filed by the appellant against the first respondent complaining of commission by him of an offence punishable under Section 138 of the Negotiable Instruments Act as S.T.No.47 of 97. Ext.D2 shows that Ext.D1 complaint was withdrawn and the accused was acquitted under Section 257 of the Crl.P.C. on 28.5.1997, as rightly observed by the court below. Going by the case of the complainant, he advanced a further amount of Rs.80,000/- shown in Ext. P1 cheque on 21.5.1997. It is highly improbable that when the appellant who had lent Rs.75,000/- to the first respondent and had occasion to file Ext.D1 complaint against the first respondent has again advanced a further huge amount of Rs.80,000/- to the first respondent on 21.5.1997. As evidenced by Ext.D2, Ext.D1 CRL.A.45/2008 3 complaint was withdrawn only on 28.5.1997. It is submitted by the counsel for the appellant that in fact the amount covered by Ext.D1 complaint was received earlier to 21.5.1997 and the matter was settled and it is only that the complaint was withdrawn on 28.5.1997. The learned Magistrate also observed that the appellant who had once burnt his finger by advancing Rs.75,000/- to the first respondent would not certainly advance any further amount to the first respondent and it is highly improbable that more than the amount advanced on the earlier occasion was advanced on the subsequent occasion despite the first respondent having given room for the appellant to file complaint consequent on dishonour of the cheque for Rs.75,000/-. 3. In the circumstances, the contention of the first respondent that Ext. P1 cheque was also a cheque that was received by the appellant at the time of availing of first loan by the first respondent stands probablised and thus on preponderance of probabilities the presumption under Section 139 of the Negotiable Instruments Act in favour of the appellant CRL.A.45/2008 4 stands rebutted. Other than the presumption relied upon by the appellant, he had no evidence to establish that in fact he had advanced Rs.80,000/- and that Ext.P1 is supported by consideration and that it is issued in discharge of the said debt. The acquittal of the first respondent by the court below is hence justified and this Crl. Appeal is devoid of any merit. In the result, I dismiss this Crl.Appeal refusing admission. K.P.BALACHANDRAN, Judge csl