IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 CRL.A.No.2476 of 2007 (D) -------------------------------- CR.L.P.1225/2007 Dated 04/12/2007 CC.383/2006 OF JFMC-II (ADDL. MUNSIFF), KASARAGOD. .................... APPELLANT: COMPLAINANT: --------------------------------- K.C.PETER, S/O.CHACKO, AGED 42 YEARS, RESIDING AT KOSSAPPILIL HOUSE, KRISHNA QUARTERS, KOVVAL STORES, KANHANGAD SOUTH P.O., HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.SANTHOSHKUMAR RESPONDENTS: ACCUSED: ------------------------------- 1. K.V.RANJITH, AGED 30 YEARS, S/O.H.K.GANGADHARAN, KANDATHIL HOUSE, NEAR G.F.L.P. SCHOOL,HOSDRUG KADAPPURAM, KUSHAL NAGAR, KANHANGAD POST, HOSDRUG TALUK, KASARAGOD DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 2476 of 2007 --------------------------- JUDGMENT Appellant is the complainant in C.C.No.383/06 on the file of the Judicial First Class Magistrate's Court, Kasargode. He filed the said complaint under Section 138 of the Negotiable Instruments Act alleging that for amount of Rs.60,000/- due to him, the first respondent issued Exhibit P1 cheque dated 23.2.2006; that on presentation, it was dishonoured by the Drawee Bank under Exhibit P2 memorandum assigning the reason “insufficient funds”; that notice intimating the fact of dishonour of the cheque and demanding payment of the amount covered by the cheque was issued to the first respondent, but he has not paid up the amount and that thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 2. On appearance of the first respondent, he pleaded not guilty when the particulars of the offence was read over and explained to him and he was questioned. The petitioner gave evidence as PW1 and got marked Exhibits P1 to P5. On the prosecution CRA 2476/07 2 closing their evidence, the first respondent/accused was questioned under Section 313 Cr.P.C. According to him, he was a subscriber of the kuri conducted by the appellant; that the kuri was for Rs.18,000/- and he bid the kuri for Rs.9,000/-; that at the time of disbursal of the prize amount, a blank signed cheque was received by the appellant as security; that the said cheque was misused by the appellant to file the complaint and that there is no legally enforceable debt to be discharged under Exhibit P1. On the defence side, DW1 was examined and Exhibits D1 and D2 were marked. 3. All the statutory formalities required for maintainability of the complaint under Section 138 of the Negotiable Instruments Act stand complied with in the instant case. The case of the appellant is that for the amounts due to him, Exhibit P1 cheque was issued and it was dishonoured on presentation and despite notice, the first respondent has not paid up the amounts. According to the first respondent, the cheque is one issued by way of security for the future instalments to be paid up in the prized kuri subscribed by him, of which, the appellant is the foreman and the CRA 2476/07 3 said cheque was being misused by the appellant for filing the complaint. Exhibit D1 produced by the first respondent is the kuri passbook issued by Vrindavan Chits (P) Ltd., of which, the appellant is submitted to be the Proprietor. Exhibit D1 shows that the first respondent received an amount of Rs.9,000/- as prize amount of the kuri. The appellant, as PW1, has admitted issuance of Exhibit D1 pass book. He also deposed that the kuri was started in June 2004 and that the first respondent paid monthly instalments at the rate of Rs.600/- till December 2004. He further admitted that the first respondent was a defaulter and he is yet to take steps to realise the amounts due under the kuri transaction. 4. It is worthy to note that Exhibit D2 reply had been sent by the first respondent to Exhibit P4 notice issued by the appellant, denying the allegations in the notice and setting up the case of Exhibit P1 cheque having been issued by way of security only under the kuri transaction. Still, the appellant has not produced the kuri security bond, if any, executed by the first respondent and the sureties undertaking to pay up the CRA 2476/07 4 future instalments under the kuri, if at all the prize amount was not being disbursed, accepting Exhibit P1 blank cheque by way of security, as contended by the first respondent. This highly probabilises the case of the first respondent that the cheque was issued by way of security for payment of the future instalments in the kuri. PW1 has also admitted that the first respondent has defaulted the future subscriptions and he is yet to take steps against the first respondent for realisation of the dues under the kuri transaction. If at all the first respondent is a defaulter ever after December 2004, it is highly improbable that the appellant would advance a further amount of Rs.60,000/- to the first respondent in 2006. This aspect also casts doubt on the genuineness of the alleged transaction. The first respondent has successfully established his contention, so as to cast shadow of doubt on the case of the appellant and to rebut the presumption available in favour of the appellant under Section 139 of the N.I. Act, as Exhibit P1 cheque is shown to be one that was being issued not in discharge of any legally enforceable debt, but by way of security for payment of CRA 2476/07 5 the future instalments in the kuri and that the said cheque was being misused by the appellant for filing the complaint under Section 138 of the Negotiable Instruments Act, inserting a huge amount of Rs.60,000/-, when the maturity value of the kuri itself is only Rs.18,000/-. Thus, there is no merit at all in this appeal and the complaint was rightly being dismissed by the court below. In the result, I dismiss this criminal appeal. 1st January, 2008 (K.P.Balachandran, Judge) tkv