IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 CRL.A.No. 798 of 2003() ----------------------- CC.547/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT(S): COMPLAINANT ------------------------- GANDHARAN PILLAI R., KALABHAVANIL, THAZHATHUKULAKKADA P.O., KULAKKADA VILLAGE. BY ADV. SRI.LEGY ABRAHAM RESPONDENT(S): ACCUSED ---------------------- 1. P.A.MUHAMMED YASIN, MOULANAHOUSIL, KOTTAI P.O., THIROOR 2. STATE OF KERLA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.A.NO.798 OF 2003 --------------------------------------------- Dated 26th July, 2010 JUDGMENT Complainant in C.C.547/2000 on the file of Judicial First Class Magistrate-II, Kottarakara filed this appeal challenging the order of acquittal of the first respondent for the offence under Section 138 of Negotiable Instruments Act. 2. Learned counsel appearing for the appellant and first respondent were heard. 3. Argument of the learned counsel is that learned Magistrate did not properly appreciate the evidence and according to the first respondent he lost cheque on 1/6/1998 but a complaint, evidenced by Ext.P8 FIR was filed only on 11/11/1998 CRA 798/03 2 after the notice sent by the appellant demanding the amount covered by dishonoured cheque was received by him on 3/10/1998 and hence learned Magistrate should have found that defence case is not true. It is argued that Ext.P1 cheque was issued in the joint account and cheque was issued by first respondent towards repayment of Rs.1,75,000/- which was received from the appellant on 3/8/1997 and therefore, the order of acquittal is unsustainable. 4. Case alleged in the complaint is that a relative of the appellant was seeking employment as a teacher and first respondent promised that he will give employment on receipt of Rs.5,00,000/- and on 3/8/1997 from the house of the appellant, first respondent received Rs.1,75,000/- and towards its CRA 798/03 3 security, he issued Ext.P1 cheque drawn in his account maintained in Tirur Urban Co- operative Bank, Pariyarapuram Branch. When first respondent did not give employment, appellant approached him for return of the amount. Then first respondent represented that Ext.P1 cheque could be encashed. Appellant presented Ext.P1 cheque for encashment through Puthoor Branch of State Bank of Travancore. But the cheque was dishonoured under Ext.P2 as payment was stopped by the first respondent and it was intimated to the appellant by Ext.P3 memo. Appellant sent Ext.P4 notice demanding the amount covered by the dishonoured cheque. First respondent sent Ext.P7 reply raising false allegations and thereby committed the offence. Learned Magistrate has taken CRA 798/03 4 cognizance and issued summons to the first respondent. First respondent appeared and pleaded not guilty. Appellant was examined as PW1. Manager of the bank was examined as PW2. First respondent examined a witness as DW1. Exts.P1 to P12 were marked on the side of the appellant. Learned Magistrate on the evidence found that appellant failed to establish that Ext.P1 cheque was issued towards discharge of a debt or liability and Ext.P1 cheque was issued in joint account and not by the first respondent and hence acquitted first respondent. 5. Evidence of PW1 with the case pleaded in the complaint show that case of the appellant cannot be believed. Appellant is a resident of Kottarakara. First respondent is a resident of Tirur. CRA 798/03 5 M.M.M.Higher Secondary School is at Tirur. Through Suresh Kumar, another resident of Kottarakara, appellant came to know that there is a vacancy in the school run by the first respondent and if Rs.5,00,000/- is paid he could get employment for his relative. Appellant contacted first respondent and first respondent agreed to give employment provided Rs.5,00,000/- is paid. That arrangement was entered into, two weeks prior to 3/8/1997. Appellant arranged Rs.1,75,000/- and informed first respondent. First respondent in turn went to Kottarakara and from the house of appellant received Rs.1,75,000/- on 3/8/1997. On receipt of the amount, first respondent issued Ext.P1 cheque as security. Later when the employment could not be given, on the demand of the appellant CRA 798/03 6 for return of the amount, first respondent stated that Ext.P1 cheque could be encashed. Question is whether the story can be believed. 6. Evidence of PW1 establish that he did not make any enquiry to find out who is the manager of M.M.M.Higher Secondary School, Tirur, whether it is single management or an educational agency. Appellant did not make any enquiry to find out whether there is any vacancy and first respondent could give employment in that school. It is impossible to believe the case of the appellant that without making any preliminary enquiry on these matters, he would pay Rs.1,75,000/- to the first respondent. Even if it is taken that appellant believed the words of the first respondent, as he was persuaded by the CRA 798/03 7 representation made by Suresh Kumar, it cannot be believed that appellant will part with Rs.1,75,000/- without entering into an agreement or at least getting a receipt for payment of Rs.1,75,000/-. A cheque issued as security cannot be a substitute for the agreement to show that first respondent has agreed to give employment to the relative of the appellant. The entire case is to be appreciated in this background. As rightly found by the learned Magistrate, on the evidence it is impossible to believe the case of the appellant that he would pay Rs.1,75,000/- without making any enquiry as to whether first respondent could give employment, if the money is paid. In such circumstances, finding of the learned Magistrate that appellant failed to establish CRA 798/03 8 that Ext.P1 cheque was issued towards discharge of any debt or liability is perfectly correct and warrants no interference. Even if there is any weakness in the defence case, that will not enable the appellant to get a conviction against first respondent. Criminal case has to be proved by the prosecution and failure to prove the defence case or the weakness of the defence case will not enable the complainant to get conviction. I find no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.