IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 CRL.A.No. 1477 of 2003() ------------------------ AGAINST THE ORDER IN CRLP.244/2003 Dated 31/07/2003 CRA.62/2002 of ADDL. SESSIONS COURT, ALAPPUZHA .................... APPELLANT/IST RESPONDENT/COMPLAINANT ---------------------------------------- MATHEW KURUVILA, MEDAYIL, PALLIKKOOTTUMMA, RAMANKARY P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.JOHN VARGHESE RESPONDENTS/ APPELLANT & 2ND RESPONDENT/ACCUSED AND STATE ----------------------------------------------------------- 1. LUIS CHACKO, S/O.LUIS, PAZHAPARAMBIL, PALINEUNNU P.O., ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI. MUHAMMED PUZHAKKARA ADV. SRI.K.A.SALIL NARAYANAN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.No.1477 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The appeal is directed against the order of acquittal of respondent No.1 passed by the Sessions Judge reversing the order of conviction passed by the trial court. 2. The trial court had found respondent No.1/accused guilty under Section 138 of the Act and convicted and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/= and in default of payment of fine, to undergo simple imprisonment for three more months. 3. As mentioned earlier, the Sessions Court set aside the order of conviction and sentence and acquitted the accused. Hence, this appeal. 4. The case of the appellant/complainant before the trial court was that the accused had borrowed a sum of Rs. One lakh from him. He issued Ext.P1 cheque dated June 9, 1999 in discharge of the said liability. But when the cheque was presented, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory demand noticed issued by the complainant was returned unclaimed. The liability was not discharged. Hence, the complaint. 5. Complainant was examined as PW1 and the Manager of the Bank and Postman of the local post office were 2 Crl.A.No.1477/03 examined as Pws 2 and 3 respectively. Exts.P1 to P8 were also marked in the case. Dws 1 to 3 were examined and Ext.D1 was marked on the side of the defence. 6. As has been noticed already, the trial court accepted the case of the complainant and held that the complainant had successfully established his case. Accordingly the accused was convicted and sentenced. 7. However, in appeal, it was noticed by the learned Sessions Judge that the case of the complainant ought not to have been believed or accepted by the trial court. It is pertinent to note that PW1/complainant is admittedly a money lender/financier. He is running a financing establishment. While the case of the complainant was that the accused had borrowed Rs. One lakh from him and issued Ext.P1 cheque in discharge of the said liability, the specific case of the accused was that he had availed a gold loan of Rs.12,000/= by pledging 40 grams of gold in the finance company on January 23, 1999. Ext.D1 produced by the defence was the token/receipt issued by the finance company evidencing pledge of the gold ornaments. PW1 had admitted that Ext.D1 was issued by his firm to the accused in connection with the above gold loan transaction. It was also admitted by the complainant that the above gold ornaments had not been claimed back by the accused so far, which means that the complainant would have sold the gold ornaments and appropriated the proceeds thereof towards 3 Crl.A.No.1477/03 the loan account. 8. It is significant to note that Ext.P1 cheque is dated June 9, 1999. The averment in the complaint with regard to the loan transaction of Rs. One lakh is that the accused had gone to the residence of the complainant on May 9, 1999 and issued Ext.P1 post dated cheque for Rs. One lakh. There is no whisper in the complainant as to when the money was borrowed by the complainant. More importantly, PW1 in the course of cross examination admitted that he had been running the finance business in order to make profit and earn interest. He conceded that Rs. One lakh had been lent to the accused without any interest. But, he admitted that under normal circumstances he would have lent money only after collecting interest. It is significant to note that the complainant had no special kind of relationship with the accused in order to show such a favour to the accused and lend money to him without demanding any interest. The above aspect has to be considered in the backdrop of the fact that the accused had not yet redeemed the gold ornaments which were admittedly pledged by him in the firm of the complainant about 5 months prior to the present alleged loan transaction. The learned Sessions Judge had adverted to the above aspects and come to the conclusion that the case of the accused was more probable. 9. Having carefully gone through the deposition of Pw1 and Dws 1 to 3 and also having perused Ext.D1, I do not find 4 Crl.A.No.1477/03 any reason to interfere with the order passed by the learned Sessions Judge. In my view, the learned Sessions Judge was justified in accepting the defence case as more probable and reasonable. From the materials available on record, it can be safely held that Ext.P1 cheque was not supported by consideration. The case of the accused that Ext.P1 blank signed cheque was collected from him by the complainant at the time when the gold loan was availed of by him, appears to be more probable and acceptable especially on the face of the improbable prosecution case. In that view of the matter, I do not find any merit in the appeal. The appeal fails. It is accordingly dismissed. (A.K.BASHEER, JUDGE) cl 5 Crl.A.No.1477/03 A.K.BASHEER, J. CRL.A.No.1477 OF 2003 JUDGMENT 16th December, 2008