IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 CRL.A.No. 370 of 2000() --------------------------------- CC.468/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT: COMPLAINANT ------------------- NALAKATH ISMAIL, S/O. PANIKKAVEETTIL KUNHALU, CHOOLAPRAM DESOM, IRINGAPRAM AMSOM , CHAVAKKAD TALUK. BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) RESPONDENTS: ACCUSED ----------------------- 1. MOHANAN, S/O. PATHAYAMPARAMBIL RAMAN KARAMUCK DESOM, ALOOR VILLAGE, OTTAPPALAM TALUK. 2. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE SRI.MOHANAN. FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. ------------------------------------------------- Crl.Appeal No. 370 of 2000 ------------------------------------------------- Dated this the 21st day of May 2008. J U D G M E N T The complainant in a prosecution under Section 138 of the Negotiable Instruments (Amendment) Act, 1988 has preferred this appeal challenging the Order of acquittal passed by the Court below. 2. While acquitting the respondent/accused the learned Magistrate held that the complainant had not succeeded in proving his case and that the defence case was more probable. 3. The case of the complainant was that the accused had come to his residence in the first week of September 1997 and borrowed a sum of Rs.1,65,000/- (Rupees one lakh sixty five thousand only) undertaking to repay the same within six months. When the accused failed to discharge the liability as promised, the complainant made repeated demands. Finally, on April 29, 1998 the accused went to the residence of the complainant and issued Ext.P1 cheque for a sum of Rs.1,65,000/- towards repayment of the loan. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though, a statutory demand notice was issued, it was returned unclaimed. 4. The complainant was examined before the Court below as PW1 and his witnesses were examined as PW2 to PW4. Exts.P1 to P8 were marked on the side of the complainant. The accused was examined as DW1 and Exts.D1 to D4 were marked on his side. The case of the accused was that he had not borrowed any amount from the complainant as alleged by him. In fact, he had introduced his friend one Salim who was conducting a chitty in the Gulf to the complainant. The complainant had joined the chitty. But later the chitty had collapsed. At that stage, the complainant had come to the work place of the accused and forcibly taken a blank signed cheque from him. According to the accused, later, the entire amount due to the complainant had been paid off. But the complainant did not return the blank signed cheque obtained from him, though, he had promised to do so. The accused further contended that in the meanwhile he had to return from the Gulf and therefore, could not get back the cheque from the complainant. The further case of the accused was that the complainant had issued Ext.D1 communication acknowledging the receipt of the entire amount from the accused. 5. The learned Magistrate on a careful evaluation of the oral and documentary evidence on record, held that the case of the accused was more probable and believable. As rightly noticed by the learned Magistrate the case of the complainant that he lent the money to the accused without even bothering to obtain any receipt or other document was by itself unnatural. The complainant also could not say when exactly he had advanced the money to the accused. The learned Magistrate had placed considerable reliance on Ext.D1 communication sent by the complainant to the accused, in which it was categorically stated by the complainant that he had received the entire amount of Rs.1,65,000/- along with Rs.15,000/- towards interest. Reference was also made in Ext.D1 to the cheque bearing No.27523, which incidentally was the same cheque which was marked in the case as Ext.P1. More importantly, Ext.D1 contained the photograph of the complainant bearing his signature, in addition to the signature put by him on a revenue stamp. The learned Magistrate had compared the signature of the complainant in the complaint, vakkalath, deposition etc. with the signature found in Ext.D1. The learned Magistrate found that the signatures tallied very well. I have also perused the entire materials available on record. I do not find any reason to take a different view from the one that has been taken by the learned Magistrate. Having regard to the entire evidence and circumstances, I have no hesitation to hold that the court below was justified in holding respondent/accused not guilty. There is no merit in the appeal, which is accordingly dismissed. (A.K.BASHEER, JUDGE) skr