IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRL.A.No.401 of 2001 (B) ------------------------------ CC.510/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA. .................... APPELLANT: -------------- C. MANIKANTAN NAIR, S/O CHELLAPPAN PILLAI, VISHAKH, VELLAYANI, KALLIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.S.RAJEEV RESPONDENTS: ------------------ 1. S. KRISHNAKUMAR, T.C. 41/884, SHAJI LAND, KURIYATHI, MANACAUD, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.G.UNNIKRISHNON SRI.K.SANEESH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.401 of 2001 ------------------------------------------------ Dated this the 11th day of April, 2008 JUDGMENT The complainant in C.C.510/96 on the file of the Judicial First Class Magistrate's Court-I, Neyyattinkara is the appellant. He assails in this appeal the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 255 (1) of the Cr.P.C. 2. The first respondent filed complaint in the court below alleging inter alia that the accused is a business man engaged in real estate business; that for his business purposes he borrowed Rs.89,500/- from the appellant on 15/03/96 and issued Ext.P1 cheque in discharge of the said debt with date 15/04/96 drawn on his account at the District Co-operative Bank, Kollam; that the cheque was forwarded for encashment through his bankers the Federal Bank Nemom branch Thiruvananthapuram Crl. Appeal No.401 of 2001 -2- and it was returned dishonoured by the drawee bank under Ext.P2 dishonour memorandum assigning the reason funds insufficient that Ext.P1 cheque along with Ext.P2 memorandum was forwarded to him by his bankers under Ext.P3 memorandum that thereupon, the original of Ext.P4 notice dt.15/05/96 was caused to be issued to the first respondent under Ext.P5 postal registration receipt intimating the first respondent of dishonour of the said cheque and demanding payment of the amount covered by the cheque, but that the first respondent who received the original of Ext.P4 notice under Ext.P6 postal acknowledgment card has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and he has thereby committed offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate registered the complaint on his file as C.C.510/96 taking Crl. Appeal No.401 of 2001 -3- cognizance of the offence under Section 138 of the N.I. Act recording the sworn statement of the appellant. On issuance of summons the first respondent entered appearance and he was served with copies of all relevant records in the case and he was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. On the side of the appellant PWs.1 and 2 were examined and Exts.P1 to P8 were got marked. On the complainant closing his evidence the first respondent was questioned by the Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, Ext.P1 cheque was issued by him not in connection with the transaction alleged but that in connection Crl. Appeal No.401 of 2001 -4- with an agreement to sell property belonging to the first respondent an agreement was executed and by way of advance Rs.10,500/- was paid in cash and for the balance Rs.89,500/- Ext.P1 cheque was issued and the appellant gave him duly executed the agreement and the prior documents but that as the extent of the property was less by three cents the agreement was not performed. 4. On the defence side DW1 is examined and Exts.D1 to D7 were got marked. The court below considered the case in the light of the evidence adduced as aforesaid; found that the appellant has failed to prove and establish guilt in the accused and consequently, acquitted the first respondent of offence punishable under Section 138 of the N.I. Act as already stated. Hence, this appeal by the aggrieved appellant. 5. It is vehemently contended before me by the learned counsel for the appellant that Crl. Appeal No.401 of 2001 -5- Ext.D1 agreement was executed by the appellant; his wife and his father-in-law receiving an amount of Rs.1 lakh in advance agreeing to sell an extent of 19.5 cents to the first respondent before 15/04/96; that the value was being fixed at Rs.13,250/- per cent and that the transaction evidenced by Ext.P1 has absolutely no connection with the transaction evidenced by Ext.D1 and that there is no mention in Ext.D1 that the amount of Rs.1 lakh was being advanced by payment of Rs.89,500/- by Ext.P1 cheque and the balance only in cash and that the court below has not properly appreciated the case and has acquitted the accused entering into a wrong finding that the appellant has not established the case alleged though the evidence is sufficient to establish the case of the appellant. 6. On the other hand, it is vehemently contended by the counsel for the first Crl. Appeal No.401 of 2001 -6- respondent that the extent of property was found to be less on measurement and therefore, the first respondent withdrew from purchasing the property and consequently Ext.D1 agreement was not performed and that it is to wreak vengeance that the appellant has filed the present complaint and that the first respondent has already filed O.S.1329/98 on the file of the Munsiff's Court, Thiruvananthapuram against the first respondent, his wife and his father-in-law who are parties in Ext.D1 agreement praying for a decree for return of the advance amount of Rs.10,500/- with interest and cost and for a direction for return of Ext.P1 cheque for the balance amount of Rs.89,500/- that being cheque delivered over to the appellant to satisfy the advance of Rs.1 lakh under Ext.D1 agreement. 7. Ext.D3 is the plaint in the said suit. Ext.D4 is the written statement filed therein Crl. Appeal No.401 of 2001 -7- by defendants 1 to 3 in the said suit of whom the second defendant is the appellant. Ext.D5 is copy of petition filed by the first respondent for attachment before judgment of the property agreed to be sold for the amount sought to be recovered in Ext.D3 suit. Ext.D2 is the attested copy of notice issued by the first respondent to the appellant, his wife and his father in law and Ext.D6 is reply issued by them thereto. The said notice and reply would show that there existed dispute with respect to extent of land that was available for sale to the first respondent under Ext.D1 agreement. It is seen from Ext.D2 that it was being issued on 12/06/96 whereas the complaint was being filed by the appellant in the court below subsequent to that on 15/06/96. This suggests that the complaint filed by the appellant in the court below is a counter blast for action proposed vide Ext.D2 notice from the second respondent. Even in Crl. Appeal No.401 of 2001 -8- Ext.D2 notice the case of the first respondent is that the amount of Rs.1 lakh advanced under Ext.D1 agreement was by payment of Rs.10,500/- in cash and the balance by Ext.P1 cheque. If at all the first respondent had paid Rs.1 lakh in cash under Ext.D1 agreement certainly he would not have filed Ext.D3 suit advancing claim for return of Ext.P1 cheque and the balance amount paid under Ext.D1 agreement. The appellant as PW1 has admitted in cross examination that the amount of Rs.1 lakh received under Ext.D1 from the first respondent is not refunded to him but in the next breath he says that that amount was received by his father-in-law. The suggestion put to him that Ext.D1 was being issued to satisfy the amount made mention of in Ext.P1 has however been denied by PW1. It is worthy to note that there is absolutely no evidence furnished by PW1 as regards the source of money that he had, to advance Rs.89,500/- to Crl. Appeal No.401 of 2001 -9- the first respondent on 15/03/96 especially when he states that the amount under Ext.D1 was being received by way of advance by his father-in-law. It has been held by the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008 (1) KHC 410 SC) that the presumption available under Section 139 of the N.I. Act is not regarding existence of a debt or regarding existence of a legally enforceable/recoverable debt but that the presumption available in favour of the holder of the cheque is only that he received it in discharge of debt or other liability. If at all as is contended by the first respondent the cheque was not being issued to make up Rs.1 lakh by way of advance under Ext.D1 agreement and as contended by the appellant the said advance was being received by his father-in-law it was up to the appellant to show from where he did have so much funds with him to advance Rs.89,500/- to the first respondent on his asking for a loan. Crl. Appeal No.401 of 2001 -10- There is absolutely no evidence as regards the financial ability of the appellant. A suggestion was put from this Court as to whether the appellant is ready to settle the matter along with Ext.D3 suit and to have an amicable settlement of all disputes between him and the first respondent provided the first respondent gives up all claims under Ext.D1 and returns all the original documents received under Ext.D1. But counsel for the appellant submitted that the transactions are different and that he has to ascertain however the willingness of his party. Accordingly the case was posted to this day to ascertain chances of settlement. Today, the counsel for the respondent has brought all the original documents which the first respondent received under Ext.D1 agreement for sale and the counsel for the appellant submits that he is not aware as to whether these are the documents. When asked as to whether the appeal Crl. Appeal No.401 of 2001 -11- can be withdrawn in case the documents brought by the counsel for the respondent are the documents received under Ext.D1 the answer of the counsel for the appellant was that he has further to ask the appellant. However, the appellant also is not present before court. It appears that the appellant is not at all interested in settling the matter and it is not proper also to adjourn this case further when the party is not desirous of settling the matter. In view of my discussions on merits of the case made above, I am of the view that the appellant has not established that Ext.P1 cheque is one issued by the first respondent to him in discharge of any debt or other liability and that the appellant is also not shown to have any source to advance so much amount to the first respondent on the mere asking especially when even the amount which the appellant states as having been received namely Rs.1 lakh under Ext.D1 was being Crl. Appeal No.401 of 2001 -12- received according to him by his father-in-law and not by him. Hence, concurring with the finding of the court below I also conclude that the appellant has miserably failed to establish a case for conviction for offence under Section 138 of the N.I. Act as against the first respondent. This appeal is hence, devoid of merit and deserves only to be dismissed. 8. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-