IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.A.No. 727 of 2002() ----------------------- CC.137/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- M/S. PULIMOOTTIL AUTOMOBILES, KANJIKUZHY, KOTAYAM-4, REPRESENTED BY MRS. ANNAMMA ABRAHAM, PROPRIETRIX, THROUGH POWER OF ATTORNEY HOLDER MR.GEEVARGHESE CHACKO, MANAGER,M/S.PULIMOOTTIL AUTOMOBILES, KANJIKUZHY, KOTTAYAM-4. BY ADV. MR.KOSHY GEORGE RESPONDENT(S): ACCUSED: -------------------------------------------- MANOHARLAL, PROPRIETOR, M/S. LAL MOTORS, COLLEGE JUNCTION, KAYAMKULAM. BY ADVS. SMT.K.V.BHADRA KUMARI, MR.V.DEVASIKHAMANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 727 OF 2002 = = = = = = = = = = = = = = = Dated this the 27th day of May, 2009. J U D G M E N T This appeal is preferred against the judgment in C.C.137/00 of the Chief Judicial Magistrate Court, Kottayam. It was an action initiated u/s 138 of the N.I. Act. It is the case of the complainant that the accused had issued a cheque for Rs.1,51,392/- on 29.3.2000 towards the discharge of the liability which when presented for encashment returned with the endorsement of insufficiency of funds. Thereafter statutory notice was issued and action initiated. The defence appears to be that the accused is a dealer of Kinetic Honda Scooter and when the complainant who is also a dealer of the scooter was not able to achieve target, used to entrust scooters for sale to the accused and as security he had issued a blank signed cheque and further that for the scooters purchased on 26.1.2009 he had paid the cash and no amount is due from him. Crl.A. 727 OF 2002 -2- 2. In the trial Court PW1 and DW1 were examined. Exts.P1 to P11 and Exts.D1 to D3 were marked. On an analysis of the materials the Court below came to the conclusion that the complainant has not succeeded in proving that Ext.P2 cheque was issued in discharge of a liability and that the accused succeeded in showing that it was issued as a blank cheque towards security at the time of their business transaction. It is against that decision the present appeal is filed. 3. The point that arises for determination is whether there are any grounds to interfere with the order of acquittal passed by the Court below. 4. The learned counsel for the appellant had very vehemently canvassed before me that the Court below has gone wrong in appreciating the materials and arriving at a decision against law. The brief facts would reveal that it is the definite case of the complainant that the cheque had been issued towards the discharge of the liability for the purchase of scooters by the accused from the complainant. On the contra, Crl.A. 727 OF 2002 -3- the accused would contend that he was also a sub-dealer of the scooters and when the complainant found it difficult to sell number of scooters he used to entrust him scooters for sale and for the said purpose had obtained a blank signed cheque as security. There is lot of confusion attempted to be drawn out in the case. It appears that the contention is that as the purchase price of four scooters sold on 26.1.00, is outstanding and it is towards the discharge of that liability Ext.P1 cheque is issued. I had perused Ext.P1 cheque. Prima facie it would indicate that the signature in that cheque is in black ink and the writing is in blue ink. If one person had executed the document at the same time there was no necessity to be so. The difference in the ink is indicative of a factor that all is not well with the case of the complainant. Ext.D2 series are produced by the accused to show that the amount for the purchase of scooters had been paid by virtue of Ext.D2 series. In all these documents there is an endorsement delivery obtained with full satisfaction on payment of the entire price of Rs........./- in full and final settlement of the transaction. So a Crl.A. 727 OF 2002 -4- reading of Ext.D2 series would reveal that the entire amount had been paid at the time of purchase of the vehicle. Then Exts.P10 and P11 are produced to explain away the difficulty but I do not find any thing in Exts.P10 and P11 which would help the Court in resolving the controversy. Absolutely there is no entry with respect to the sale of four scooters on 26.1.2000. If a person only issues a cheque towards the sale consideration, being an automobile company there would have been some documents to show that consideration had been paid in the form of cheque and the cheque number would have been given. It is absent in this case. Learned counsel would contend that an expert opinion is necessary to find out regarding the difference in the hand writing and signature. It was the duty of the complainant to convince the conscience of the Court regarding the correctness of the same. Here, for seeing the difference in the ink one need not send it to an expert. A glance with the naked eye is sufficient to establish that factor. Now in a case of this nature when the difference is specifically stated it is incumbent upon the complainant to Crl.A. 727 OF 2002 -5- satisfy the Court regarding the transaction. As stated by me earlier Ext.D2 series indicates about the full receipt of the amount regarding the alleged sale of the scooters. Further Ext.P1 cheque also creates a suspicion in the mind of the Court to the effect that it is only a blank signed cheque that had been later utilized for the case. 5. Lastly the learned counsel requests for a remand. I do not find any necessity to remand the case for the reason that whatever materials are to be produced are available before Court but the only dissatisfaction is that it does not prove the case of the prosecution. I find that the learned Chief Judicial Magistrate Court has discussed the matter only in the correct perspective and arrived at a proper decision and therefore the order of acquittal does not call for any interference and hence the appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 727 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 727 OF 2002 = = = = = = = = = = = J U D G M E N T 27th May, 2009