IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 CRL.A.No. 1533 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.294/2003 Dated 18/08/2003 ST.225/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... APPELLANT/COMPLAINANT: ---------------------------------------- M/S. VENUGOPAL COMPANY, ANDIMADAM JUNCTION, KADUKKAMKUNNAM POST, PALAKKAD, REP. BY MANAGING PARTNER, SRI.M.A. SADAANDAN, S/O. LATE M.A. ACHUTHAN 7/42, ANDIMADAM, PALAKKAD - 5. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENTS/ACCUSED/STATE: ------------------------------------------------ 1. M.P. SREEVALLY, W/O. RAMACHANDRAN, W.P.C. NO.2453, VADAKKANCHERRY POLICE STATION, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJAN VARGHEESE K. FOR R1 SRI.LIJU. M.P FOR R1 R2 BY PUBLIC PROSECUTORM SHRI. PUZHAKKARA MYHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON 03/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1533 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 225 of 2000(wrongly noted in the judgment as S.T.No.225 of 2000) on the file of Chief Judicial Magistrate Court, Palakkad against the judgment of acquittal of the accused dated 13.5.2003. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of N.I. Act. 2. The case of the complainant is that the accused, who had borrowed a sum of Rs.35,000/- from the complainant company on 10.5.1999 on the strength of demand Promissory Note, had issued a cheque for a sum of Rs.38,500/-, which is inclusive of the principal amount and interest. When the cheque was presented for collection, it was dishonoured due Crl.A. No. 1533 of 2003 2 to insufficiency of funds in the account of the accused. The complainant sent a lawyer notice intimating the dishonour, which was accepted by the accused. But she had not paid the amount within the stipulated period. 3. In the Chief Judicial Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to P6 were marked. On the defence side, DW1 was examined and Exts.D1 to D5 were marked. The Learned Chief Judicial Magistrate, on considering the evidence, found that the complainant has not succeeded in proving that the accused has committed the offence punishable under Section 138 of the N.I. Act and she was acquitted under Section 255 Cr.P.C. Against that judgment of acquittal, the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 1533 of 2003 3 5. The learned counsel for the appellant submitted that the court below ought to have found that the mere filling up of payee's name etc. will not amount to material alteration since the signature in the cheque is admitted by the accused. The learned counsel for the appellant submitted that the court below ought to have found that all the necessary ingredients contemplated under Section 138 of the N.I. Act are made out by the complainant. The learned counsel further submitted that the court below ought to have found that Exts.D4 and D5 judgment and decree were in different and separate transaction and the same do not have any application or relevancy in the present complaint. The learned counsel for the first respondent supported the judgment of the court below. 6. When questioned under Section 313 Cr.P.C., she filed a separate statement stating that she had occasion to stand as one of Crl.A. No. 1533 of 2003 4 the guarantors to a chitty subscribed by one Sasikumar and since Sasikumar defaulted payment of instalments, one of the blank cheque leaves given by the accused as security at the time of subscribing to the chitties conducted by the complainant company has been misused for the purpose of instituting this case. 7. The Managing Partner of the complainant chitty company was examined as PW1. PW1 deposed that on 10.5.1999 the accused borrowed Rs.35,000/- from the complainant company on executing Ext.P1 Promissory Note. When complainant company demanded back the amount, the accused issued Ext.P2 cheque dt.15.10.1999 for Rs.38,500/- which includes the interest on the amount borrowed. PW1 deposed that when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P3 is the dishonour memo. Crl.A. No. 1533 of 2003 5 8. PW1 further deposed that the complainant sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding back the amount, which was accepted by the accused. But she did not repay any amount. Ext.P4 series are copies of lawyer notice, postal receipt and postal acknowledgment. Ext.P5 is the reply notice sent by the accused, in which the accused has stated her case specifically. 9. For proving her case, the accused herself was examined as DW1 and Exts.D1 to D5 were marked. Exts.D1 and D2 are the two pass books issued by the complainant in the name of the accused. Those documents show that the accused had subscribed to two chitties conducted by the complainant company and after prizing of those chitties she had also remitted all the instalments due from her. This fact is also not disputed by the complainant company. Crl.A. No. 1533 of 2003 6 10. Ext.D3 is the pass book issued by the complainant company in favour of one G. Sasikumar, who had subscribed to a chitty having the sala of Rs.60,000/- It is also evident from a perusal of Ext.D3 that Sasikumar had prized that chitty and subsequently he had also defaulted payment of instalments due from him. Exts.D4 and D5 are the certified copies of judgment and decree in O.S. No. 314 of 1998 filed before the Additional Munsiff Court, Palakkad. The plaintiff in that suit is none other than the complainant in this case. The first defendant was Sasikumar, who is the subscriber to Ext.D3 chitty and the accused in this case was arrayed as the second defendant. It is significant to note that in that suit, the plaintiff had claimed a total sum of Rs.39,894/-, which includes the principal sum of Rs.34,000/- and a sum of Rs.5,644/- towards interest. These documents show that the learned Munsiff dismissed the suit. Crl.A. No. 1533 of 2003 7 11. The learned counsel for the first respondent/accused submitted that the case of the accused is that since the subscriber to the chitty conducted by the complainant company had defaulted payment of instalments, by way of misusing one of the cheque leaves given by the accused as security in connection with another transaction, the present complaint has been filed in order to force the accused, who is a Government servant to pay the amount due to the complainant company from one Sasikumar. 12. The learned counsel for the first respondent submitted that from the perusal of Ext.P2 it is evident that except the signature of the accused, all the other contents in it, i.e. date, name of payee and amount, have been written by some other person. He had also argued that since the accused is working in police department, it is not at all probable to believe that she had Crl.A. No. 1533 of 2003 8 occasion to issue a cheque written by somebody and signed by her. When the accused had prized the chitties conducted by the complainant company, as security, her signature was obtained on a revenue stamp affixed on a blank Promissory Note. The accused has a further case that after payment of all the instalments of the chitties subscribed by her, demands were made by her to give back the signed blank cheque leaves and she was informed by the complainant company that unless and until Sasikumar pays the entire amount due from him to the complainant company, the documents given by the accused as security will not be returned as she is one of the sureties of Sasikumar. 13. When PW1 was cross examined, he stated that there are account books in the complainant company showing that on 10.5.1999 Rs.35,000/- was given to the accused as loan. But the complainant company has not produced any account book Crl.A. No. 1533 of 2003 9 showing the transaction between the complainant and the accused. PW1 admitted that the accused was a subscriber to two chitties conducted by the complainant company and she bid those chitties and the accused remitted the entire amount. PW1 admits that the accused was a surety to the chitty bid by one Sasikumar and that Sasikumar defaulted payment of instalments. PW1 has no case that the accused executed Ext.P2 cheque in his presence. Since the complainant did not produce the account book to show that the accused borrowed Rs.35,000/- from the complainant company, I am of the view that the learned Chief Judicial Magistrate is perfectly justified in arriving at the conclusion that the defence case is more probable than the case of the complainant and that the complainant has not succeeded in proving that the accused has committed the offence punishable under Section 138 of the N.I. Act. Crl.A. No. 1533 of 2003 10 14. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm