IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 CRL.A.No. 119 of 2003 ------------------------------------ ST.2889/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... APPELLANT/COMPLAINANT: BALAKRISHNAN, PROPRIETOR, YANGZI AGRO AGENCIES, PERUMBILAVU, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS/ACCUSED & STATE: 1. K.S.SADANANDAN, S/O.SANKARANKUTTY, MOTTARAPPATTU HOUSE, MARATHANCODE, KIDANGOOR, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.K.RAVISANKAR FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.119 of 2003 -------------------------- JUDGMENT The complainant in S.T.No.288/1999 on the file of Judicial First Class Magistrate's Court, Pattambi filed this appeal challenging the order of acquittal passed by the learned Magistrate under Section 255(1) of Code of Criminal Procedure. First respondent is the accused. Appellant lodged the complaint, taken cognizance by the learned Magistrate for the offence under Section 138 of Negotiable Instruments Act, contending that towards repayment of Rs.15,710/-, first respondent issued Exhibit P1 cheque dated 15.9.1999 drawn in his account maintained in Kunnamkulam Branch of Canara Bank and when the cheque was presented for encashment through Chalissery Branch of State Bank of Travancore, where the appellant has an account, it was dishonoured for want of sufficient funds under Exhibit P2. Appellant sent Exhibit P3 lawyer CRA 119/03 2 notice demanding the amount covered by Exhibit P1 cheque, which was served on the first respondent under Exhibit P5. But he did not pay the amount and thereby committed the offence. First respondent pleaded not guilty. 2. Learned Magistrate, on the evidence of the appellant as PW1 and first respondent as DW1 and Exhibits P1 to P6 on the side of the appellant and Exhibit D1 on the side of the first respondent, found the first respondent not guilty and acquitted him. The order of acquittal is challenged in the appeal contending that leaned Magistrate did not properly appreciate the evidence and acquittal of the first respondent on the ground that Exhibit P1 cheque was issued as security is illegal. 3. Learned counsel appearing for the appellant and first respondent were heard. 4. Argument of the learned counsel appearing for the appellant is that first respondent was acquitted on the ground that Exhibit P1 cheque was CRA 119/03 3 not issued towards discharge of any debt or liability, but only as security and even if the cheque was issued as security and it was dishonoured, an offence under Section 138 of Negotiable Instruments Act is attracted and therefore, the order of acquittal is not sustainable. Learned counsel argued that learned Magistrate should not have accepted the evidence of DW1 or Exhibit D1 to disbelieve the evidence of PW1 and on the evidence, it should have been found that first respondent issued Exhibit P1 cheque towards the amount payable for the purchase of a Power Tiller and therefore, the order of acquittal is to be set aside. 5. Learned counsel appearing for the first respondent argued that in the complaint, appellant did not disclose for what liability first respondent paid the amount covered by Exhibit P1 dishonoured cheque and though, from the witness box, PW1 deposed that it is towards value of a CRA 119/03 4 Power Tiller, even the voucher or the bill for purchase of the Power Tiller was not produced and Exhibit D1, which was admittedly written by the appellant and handed over to the first respondent, establishes that blank cheques were obtained by the appellant and Exhibit P1 cheque is one among the blank cheques, which was made use of by the appellant and therefore, the order of acquittal is perfectly legal. 6. Even if it is taken that finding of the learned Magistrate that as Exhibit P1 cheque was issued as security, no offence under Section 138 of Negotiable Instruments Act will not hold good, on the facts and evidence in this case, I find that the order of acquittal is perfectly legal. In the complaint, appellant did not disclose under what transaction first respondent was liable to pay the amount covered by Exhibit P1 dishonoured cheque. The only plea was that towards the amount due, Exhibit P1 cheque was issued. When PW1 was CRA 119/03 5 examined, he claimed that appellant had purchased a Power Tiller and towards its value, Exhibit P1 cheque was issued. In cross-examination, it was brought out that the Power Tiller, which was sold to the first respondent, is 12 H.P. and not 15 H.P. Exhibit D1 was shown to PW1 and it was admitted that he had written it and handed over to the first respondent, for the purpose of arranging a hire purchase loan for purchase of Power Tiller. Evidence of PW1 is to the effect that the value of 12 H.P. Power Tiller is Rs.1,07,460, though that of 15 H.P. Power Tiller is Rs.1,14,460/-. Evidence of PW1 establishes that hire purchase was arranged for the first respondent and Rs.50,000/- was paid from the hire purchase agreement towards the value of Power Tiller. According to PW1, there was a cash payment of Rs.44,000/-. If that be so, the balance could only be Rs.13,460/- and not Rs.15,710/-. Exhibit P1 cheque is for Rs.15,710/-. It is not known under what account first respondent has to CRA 119/03 6 pay Rs.15,710/- as shown in Exhibit P1 cheque. In such circumstances, for the failure of the petitioner to prove that first respondent was liable to discharge a debt or liability of Rs.15,710/-, which is the amount covered by the dishonoured cheque, an offence under Section 138 of Negotiable Instruments Act is not attracted. Moreover, Exhibit D1, admittedly written by the appellant, shows that for arranging hire purchase, first respondent had to furnish blank cheques. If so, finding of the learned Magistrate that the dishonoured cheque could be one of those cheques is also correct. If so, first respondent cannot be convicted. In such circumstances, I find no reason to interfere with the order of acquittal passed by the learned Magistrate. The appeal fails and it is dismissed. 16th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 119/03 7 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.119 of 2003 -------------------------- JUDGMENT 16th July, 2010