IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 CRL.A.No. 76 of 2001() ---------------------- {C.C.NO.332/1998 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA} .................... APPELLANT(S)/COMPLAINANT: --------------------------------------------------- CHERIAN, S/O. MATHEW, KUZHINJALIL HOUSE, KARUKAPPILLY KARA, ARAKKULAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.C.J.JOY RESPONDENT(S)/ACCUSED & STATE: ------------------------------------------------------------ 1. P.K.SANTHOSH, PUTTUMADATHIL HOUSE, KADAPPATTOOR KARA, MEENACHIL VILLAGE, MEENACHIL TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY GOVERNMENT PLEADER SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CR.A.No.76 of 2001 A ------------------------- Dated this the 9th day of February, 2009. JUDGMENT The complainant, in C.C.No.332/98 on the file of the Chief Judicial Magistrate, Thodupuzha, is the appellant herein, who has presented this Criminal Appeal, after obtaining leave from this court, to set aside the order of acquittal. 2. The accused was prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. On appreciation of the evidence, the trial court found that the complainant has not been able to prove that the accused has committed the offence in question, and thereafter, proceeded to acquit the accused. 3. The case of the complainant is that the accused borrowed an amount of Rs.70,000/- on 3.3.1997 and on the same day, he issued a cheque dated 3.4.1997 for the same amount; that the cheque was dishonoured for insufficiency of CR.A.No.76 of 2001 A :: 2 :: funds; that a notice was sent demanding payment and when the amount was not repaid, the complaint was instituted. 4. The defence set up by the accused, as considered by the courts below, was that the accused had no previous transaction with the complainant. The accused was employed as a driver in a Bus, owned by the complainant's cousin Mathew. At the time of appointment, the accused was asked to give a blank signed cheque. This was in 1993. That, later in 1997, on the premise that the accused had caused damage to the bus, the owner required the accused to pay an amount of Rs.40,000/- as damages. This was declined by the accused. Thereafter the signed blank cheque given by him was made use of through the complainant to file the complaint. 5. Apart from examining himself as PW.1, the complainant caused the examination of PW.2, a person who was allegedly a witness to the transaction, when the accused borrowed the amount from the complainant. CR.A.No.76 of 2001 A :: 3 :: 6. The court below appreciated the evidence of PWs.1 and 2. It was found that PW.2 is not a reliable witness. He was not quite consistent as to how he was a witness to the transaction. That, originally he had testified that he saw the accused receiving the amount, signing the cheque from within the house; but he immediately a different version. 7. The testimony of PW.1 was analysed meticulously by the court below. The court below took note of the fact that the relationship between the accused and the owner of Anjali bus, who happened to be the cousin of the complainant, was not, in any manner, disclosed in the complaint. The contention that the complainant had proceeded to give an interest free loan of Rs.70,000/- to the accused was also appreciated by the court below, but it declined to believe the said version, on an over all appreciation of the evidence in the case. The court below considered the version given by the complainant that he was CR.A.No.76 of 2001 A :: 4 :: a broker of timber and he used to meet the accused. The testimony given by PW.2 shows that the complainant was unemployed for, at least 3 years. In the circumstances, the court below came to the conclusion that the source of funds and the probability of a transaction between the complainant and the accused had not been suitably proved. It is on an appreciation of the evidence that the court below proceeded to acquit the accused. 8. I heard learned counsel for the appellant. I have gone through the judgment of the court below and I have considered the evidence. In my view, cogent reasons are given by the court below for disbelieving the evidence of Pws.1 and 2. The existence of a relationship between the complainant and the owner of the bus, that the cheque was extracted from the accused by the owner of the bus, and it was later made use of cannot be ruled out and the reasons given by the court below to accept the said version cannot be termed as untenable or improbable. The version of the CR.A.No.76 of 2001 A :: 5 :: complainant in the notice is that it was to discharge a 'previous obligation' the cheque was issued. But the version before court is that the accused issued the cheque when he borrowed the amount. This is a significant lapse in the testimony of the complainant. How did he then proceed to lodge a complaint when the cheque was dishonoured for insufficiency of funds. Learned counsel for the appellant submits that the said part of the testimony of the accused may be treated as an inadvertent lapse. In my view, it is a possible reflection of the fact that the complainant did not have any transaction with the accused as such. 9. On an over all appreciation of the facts and circumstances and evidence in the case, I am of the view that cogent reasons have been given by the court below to pass an order of acquittal in this case. This court would be reluctant to interfere with the order of acquittal, except where this court is convinced that the order of the court below is palpably wrong and has resulted in injustice. CR.A.No.76 of 2001 A :: 6 :: I do not find any reason to interfere with the order of acquittal. Accordingly, the appeal is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge