IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 CRL.A.No. 246 of 2004(A) ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.621/2003 Dated 19/12/2003 ST.4504/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... APPELLANT(S): COMPLAINANT ------------------------- KUTTISANKARA GUPTHAN, S/O. APPU GUPTHAN, VALAPPILTHODI, KADAMPAZHIPPURAM AMSOM DESOM, OTTAPPALAM TALUK. BY ADV. SRI.PHILIP T.VARGHESE RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KRALA, ERNAKULAM. 2. BALACHANDRAN, S/O. VALANKALLINGAL KUTTIKRISHNA GUPTHAN, 'JAYANTHI', PULLUNDASSERI AMSOM, AZHIYANNOOR DESOM, OTTAPALAM TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R2 SRI.K.RAVI (PARIYARATH) FOR R2 PUBLIC PROSECUTOR MR. P.A SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.246 OF 2004 ----------------------------------- Dated 3rd March, 2011 J U D G M E N T This appeal arise from an order of acquittal. 2. Appellant filed a complainant against second respondent before Magistrate Court alleging offence under Section 138 of the Negotiable Instruments Act. As per averments in the complainant, Rs.2,00,000/- was borrowed by second respondent from complainant on 2.1.1999. He also issued a pronote. But the amount was not paid and hence on demand, second respondent executed a cheque on 24.8.2000 for an amount of Rs.2,60,000/- which is his liability with interest. The cheque on presentation was dishonoured and notice was issued to the accused. A reply was sent denying allegations. Thereafter, a complainant was filed. 3. The evidence on behalf of appellant consists of oral testimony of PW1 and Exts.P1 to P5. Accused did not adduce any oral evidence but marked Exts.D1 and D2. On analysis of the evidence in detail, trial court found that execution of cheque is Crl.A. No.246/04 2 not proved. It also found that appellant did not establish that there is a liability as alleged by him, for want of production of evidence. 4. Learned counsel for appellant argued that PW1 gave evidence in respect of the transaction between appellant and second respondent and hence it is not correct to say that here is no evidence regarding execution and transaction. Trial court therefore committed mistake in acquitting accused, it is submitted. Learned counsel for respondent argued that according to second respondent, he had handed over a blank cheque when Rs.50,000/- was borrowed by him and the said cheque was misused for filing a false complaint. 5. On going through the evidence in this case, I find that mere oral statement made by a complainant is not sufficient to prove execution or transaction. The oral evidence adduced by complainant must be satisfactory. When there is documentary evidence to establish a particular fact, such document has to be produced. In this case, there is only oral evidence of PW1 without any corroboration either as oral evidence or as documentary evidence. 6. PW1 has not stated when the cheque-Ext.P1 was Crl.A. No.246/04 3 executed by second respondent or when it was handed over to him or at which place it was handed over. None of the details are stated either in evidence or in complaint. There is only a bare statement that cheque dated 24.8.2000 was handed over to the complainant. In the light of the dispute that Ext.P1 was handed over in the blank form when Rs.50,000/- was borrowed at an earlier date etc., the date, time and place of execution and issuance of cheque becomes relevant. But those details are not there in the evidence. 7. Accused raised a dispute that no amount as alleged by appellant was due to appellant from accused. PW1 who is the complainant, while examined in court, admitted that there is a register showing details of transaction in his possession and that he would produce the same. But he did not produce any register before the court to establish the fact that Rs.2,00,000/- was given to accused. 8. Accused filed petition directing him to produce the relevant document to prove the liability. But appellant did not produce any document. He only filed a memo stating that there is no such document. As per order in C.M.P.8577 of 2003 the court directed the appellant to produce document or file affidavit. Crl.A. No.246/04 4 No affidavit is seen filed, but a memo is filed on 24.9.2003 along with photocopy of license. As per the petition, request was made to produce Money Lenders License as well as audited Account Book. In such circumstances, the court below rightly entered a finding against appellant and I do not find any reason to interfere with the same. 9. Thus, appellant has not proved his case that Ext.P1 was a cheque issued for discharge of Rs.2,00,000/- as alleged by him. Even the fact that debt to the tune of Rs.2,00,000/- was incurred as on the date alleged in the complaint is not proved. Trial court also noticed there is difference in the handwriting and signature in the cheque. There is also difference in the ink used for writing the cheque and also to sign the cheque. These are also relevant while appreciating whether the cheque was issued for discharging the amount allegedly due to the complainant by accused. I find absolutely no reason to interfere with the finding of the trial court. 10. Learned counsel for appellant argued that there was a civil suit in respect of the same transaction and it was settled between the parties. This fact is admitted by PW1 in evidence. The mere fact that matter is settled before a civil court is not a reason to convict a person. Settlement can be arrived at by Crl.A. No.246/04 5 various reasons. A person may purchase peace by paying some amount. But there is nothing on record to show that accused admitted his liability, though he compromised the matter with the complainant and filed a compromise in the Civil court. Hence, there is no ground to interfere with the order of acquittal. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True Copy // P.A. To Judge.