IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 CRL.A.No. 1111 of 2001() ------------------------ CC.456/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... APPELLANT/COMPLAINANT: --------------------------------- SETHUMADHAVAN, S/o. PARUKKUTTY AMMA, INDIRA NIVAS, PENGOTTUPALAYAM, PARALI AMSOM, PALAKKAD TALUK. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.LELLULAL T.G.THUNDATHIL SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN RESPONDENTS/ ACCUSED AND STATE: -------------------------------------------- 1. VASUDEVAN, S/o. KANNAN, MANDEKKATTU VEEDU, KINAVALLUR, PALAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM, COCHIN.31. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.K.P.BALAGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ======================= Crl.Appeal.No.1111 of 2001 ========================== Dated this the 26th day of February, 2008 JUDGMENT The appellant had sought to prosecute respondent No.1/accused herein before the court below for an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate, after an elaborate consideration of the oral and documentary evidence on record, took the view that the accused had not issued Ext.P2 cheque in discharge of a legally enforceable debt or liability as alleged by the complainant. Accordingly, the complaint was dismissed acquitting the accused. Hence this appeal. 2. The case of the complainant before the court below was that he had lent a sum of Rs.1,50,000/- to the accused on October 8, 1997. At the time of borrowal the accused had executed a Promissory Note. When the complainant demanded for repayment of the loan amount the accused issued Ext.P2 cheque dated September 22, 1998, for Rs.75,000/- as part payment. When the said cheque was presented for encashment it was dishonoured due to insufficiency of funds in the account of Crl.A.No.1111/2001 2 the accused. The amount was not paid by the accused in spite of the statutory demand notice issued to him. In his reply notice the accused raised some untenable contentions. It was in the above circumstances, the complainant had prosecuted the accused. 3. PWs.1 and 2 were examined on the side of the complainant before the trial court. Exts.P1 to P7 were also marked on his side. Exts.D1 and D2 were marked on the side of the defence. 4. The defence set up by the accused was that he had not borrowed any money from the complainant as alleged by him. In fact, he had subscribed to a chitty conducted by the complainant during 1995. At the time when he had successfully bid for the chitty amount, he happened to hand over a blank signed cheque to the complainant along with a blank signed paper as requested by him as security. Though the chitty was terminated in 1998, the complainant refused to return the blank cheque. When the accused demanded for return, the present complaint was filed. The learned Magistrate after considering the entire oral and documentary evidence on record accepted the defence version Crl.A.No.1111/2001 3 and acquitted the accused. 5. It is contended by the learned counsel for the appellant/complainant that the view taken by the learned Magistrate is against the evidence on record and palpably illegal and unsustainable. But having perused the materials available on record and also having heard the counsel for the parties, I am unable to accept the above contention. 6. The case of the complainant was that the accused was acquainted with him. He had given Rs.1,50,000/- as loan to the accused on the basis of his acquaintance. On that occasion, Ext.P1 Promissory Note was executed by the accused. In the said Promissory Note the wife of the accused had signed as a witness. But the complainant admitted that he had filled up the blanks in the printed Promissory Note. The accused had specifically contented that his wife had never signed in Ext.P1 Promissory Note as a witness. Further, the complainant had admitted that the accused was a subscriber to one of the chitties conducted by him. It was also not disputed that the chitty had been terminated in the year 1998 and that accused was the successful bidder in the chitty. Crl.A.No.1111/2001 4 7. The specific case of the accused was that he had handed over a blank signed cheque as a security at the time when the prized bid amount of the chitty was released to him. It was further contented by the accused that the said blank cheque which was issued by him in the year 1995 was misused by the complainant for the purpose of launching this prosecution against him. In order to substantiate the above contention the accused had placed reliance on Ext.P7 ledger extract of the account of the accused in the State Bank of Travancore. The number of Ext.P2 cheque was 517536. Ext.P7 ledger extract revealed that all the other cheque leaves except cheque No.517536 from the same cheque book had been utilised by the accused between February and November 1995. This crucial aspect had weighed with the trial court considerably and it was therefore that the learned Magistrate had accepted the contention raised by the accused that the blank signed cheque handed over by him to the complainant in the year 1995 in connection with the chitty transaction had been misused by the complainant for the purpose of this prosecution. I do not find any reason to take a different view. The evidence of PW1 does Crl.A.No.1111/2001 5 not inspire any confidence. It is on record that the complainant had not filed a suit recovery of the amount allegedly borrowed by the accused from him under Ext.P1 Promissory Note. This also indicates that there was something amiss in the case of the complainant. Having regard to the entire facts and circumstances, I do not find any reason to interfere with the order of the acquittal passed by the court below. In my view, the learned Magistrate was justified in accepting the defence version. There is no merit in any of the contentions raised by the appellant. The appeal fails, and it is accordingly dismissed. A.K.BASHEER,JUDGE dvs