IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 CRL.A.No. 2484 of 2010() ------------------------ ( ST.189/2009 (C.C.NO.428/08) ON THE FILE OF THE JFCM II, VATAKARA ) .................... APPELLANT(S): COMPLAINANT ------------------------- SUBAIDA, D/O. KUNHABDULLA, AGED 41 YEARS, CHATHOTH MEETHAL HOUSE, NEAR GOVT. HOSPITAL, VATAKARA, KOZHIKODE-673 001. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): --------------- 1. P.B.KUNHAMMAD HAJI, S/O. KUNHABDULLA, AGED 47 YEARS, VARAPRATH HOUSE, PERODE P.O., NADAPURAM (VIA), VATAKARA TALUK, KOZHIKODE-673 001. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.2484 of 2010 ----------------------------------------------- Dated 4th January, 2011. J U D G M E N T This appeal arises from an order of acquittal. 2. The appellant filed the complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act, on the allegation that accused borrowed an amount of Rs.2,00,000/- from the complainant and for discharge of the said liability, he issued a cheque dated 4.6.2008 for the said amount. The cheque, on presentation was dishonoured. A lawyer notice was sent demanding payment, but no amount was paid. Hence, the complaint. 3. To prove the prosecution case, appellant examined herself as PW1 and marked Exts.P1 to P7. The trial court, on consideration of the evidence on record, found that complainant could not produce evidence regarding source of money, which was given to accused. It was also found that the version given by PW1 is not believable regarding payment of Rs.2,00,000/- on 15.5.2008. 4. Learned counsel for appellant submitted that complainant had given evidence that Rs.1,50,000/- was sent by Crl.Appeal No.2484/10 2 her husband through the brother in law. For raising the money, she had pledged the gold ornaments. On going through the impugned order and on hearing appellant's counsel, I do not find any reason to interfere with the findings entered into by trial court. The trial court considered the evidence and circumstances under which the amount was paid and found that evidence of PW1 is not quite believable. The following observations are made in paragraph 11 of the impugned judgment : “According to PW1, the accused had requested for the amount on 1.5.2008, stating that he had applied for a loan which would be available within two weeks. According to the complainant, the accused promised her to repay the amount on getting the loan. The complainant also claims that believing the said version she has given the amount of Rs.2,00,000/- on 15.5.2008. But it is to be noted that even when the complainant claims that the accused made her believe that he had applied for a loan which would be available within two weeks, her version during evidence was that she did not enquire about the place of the said loan application. According to her, the accused made the above said version regarding loan on 1.5.2008. It is not prudent and believable that the complainant has paid the Crl.Appeal No.2484/10 3 amount of Rs.2,00,000/- after two weeks, i.e., on 15.5.2008 without enquiring about the availability of the loan especially when it is claimed that the accused promised her to repay the amount on getting a loan which would be available within two weeks from 1.5.2008.” 5. The trial court also found that the accused disputed the source of money allegedly given to him by complainant. The trial court found that complainant could not produce evidence regarding the source of money. It was held in paragraph 12 of the judgment as follows : “The accused has also disputed about the source of money said to be given by complainant. The complainant has no case that she has got any independent income of her own. The version of PW1 is that Rs.1,50,000/- was collected as the amount sent by her husband through his brother. She also deposed that an amount of Rs.37,000/- was raised by pledging gold. But at the same time, PW1 also deposed that she could not produce any documents to show the pledging of the gold, even when she claims that the gold was pledged in South Malabar Gramin Bank, Vatakara branch. This version raises doubt on the version of PW1 regarding the claim of Rs.37,000/-. As said above, it is the claim of PW1 that her brother-in-law entrusted Crl.Appeal No.2484/10 4 Rs.1,50,000/- as sent by her husband through him. According to her, the brother-in-law entrusted the amount on 10.5.2008 or 11.5.2008. She was not aware as to the mode of the said transfer of Rs.1,50,000/- by her husband. Her version was that the brother-in-law entrusted Rs.1,50,000/- in cash to her. But absolutely there is no documents to show that the husband of the complainant had given Rs.1,50,000/- to her through his brother. No supporting oral evidence also either by the husband or by the brother-in-law of the complainant to that effect. It has also come on record through the evidence of PW1 that the accused is financially well settled and he has having a jewellery.” 6. On hearing appellant's counsel and on going through the impugned order, I do not find any reason to reverse the findings or the order of acquittal. Hence, I am not inclined to admit this appeal. The appeal is dismissed. K.HEMA, JUDGE. tgs