IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 CRL.A.No. 1641 of 2004 -------------------------------------- CRA.10/1998 of ADDL. SESSIONS COURT, ALAPPUZHA ST.142/1996 of CHIEF JUDIICAL MAGISTRATE'S COURT, ALAPPUZHA .............. APPELLANT/RESPONDENT/COMPLAINANT: R.K. RAFEEK, PARATHARA VAZHAPARAMBU THATHAMPALLY WARD, ALAPPUZHA. BY ADV. SRI.ASP.KURUP RESPONDENTS/APPELLANT/ACCUSED: 1. ANNAMMA VARGHESE, POOPPALLI, CHUNGAM WARD, ALAPPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.B.RAMAN PILLAI FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.1641 of 2004 -------------------------- JUDGMENT Appellant lodged a complaint before Chief Judicial Magistrate's Court, Alappuzha alleging that first respondent committed an offence under Section 138 of Negotiable Instruments Act. The allegation in the complaint was that appellant and first respondent are having acquaintance and towards repayment of Rupees Two lakhs borrowed by the first respondent, she issued Exhibit P1 cheque showing the date 1.10.1995 drawn in her account maintained in Alappuzha Branch of Indian Overseas Bank and at the time when the cheque was issued, first respondent made the petitioner believe that as and when the cheque is presented, it can be encashed. But, later, when the cheque was presented, it was dishonoured for want of sufficient funds and in spite of sending notice demanding the amount, it was not paid. First CRA 1641/04 2 respondent pleaded not guilty. 2. Learned Magistrate, on the evidence of the appellant as PW1 and a witness to the transaction as PW2 and the evidence of an Officer of the Bank as PW3 and Exhibits P1 to P6 and evidence of DW1, on the side of the petitioner, found first respondent guilty of the offence and convicted and sentenced her. First respondent challenged the conviction and sentence before Sessions Court, Alappuzha. Learned Additional Sessions Judge, on re-appreciation of evidence, set aside the conviction and acquitted the first respondent. This appeal is filed challenging the order of acquittal. 3. Learned counsel appearing for the appellant and first respondent were heard. 4. Argument of the learned counsel appearing for the appellant is that learned Additional Sessions Judge was not justified in interfering with the conviction, as the evidence of PW1 establishes that first respondent had borrowed amount earlier and it was repaid and in such CRA 1641/04 3 circumstances, there was nothing unbelievable in granting a further loan and therefore, the evidence of PW1 should have been accepted. It is also argued that the fact that Exhibit P1 cheque does not cover the interest of the borrowed amount is not a ground to disbelieve the evidence and therefore, the conviction is to be restored. 5. Learned senior counsel appearing for the first respondent pointed out that the very case of the appellant is improbable and rightly disbelieved by the appellate court. It was pointed out that the complaint does not show that a post dated cheque was issued as spoken to by PW1 and if the appellant used to grant loan, he would necessarily demand interest and if that be so, Exhibit P1 cannot be for the amount borrowed and the evidence of DW1 establishes that first respondent had filed a complaint alleging theft of a cheque book by her employee Hassan Koya and Exhibit P1 is one among the cheque leaves so stolen. Learned senior counsel also pointed out that subsequently a final report CRA 1641/04 4 was submitted before the court and appellant is one among the accused in that case. The allegation is that Exhibit P1 cheque herein is a forged one, making use of one of the stolen cheque leaves and in such circumstances, there is no reason to interfere with the order of acquittal. 6. If the complaint filed by the first respondent is to be relied on, first respondent should have borrowed Rupees Two lakhs from the appellant earlier and towards its repayment, should have issued Exhibit P1 cheque dated 1.10.1995 and when the cheque was issued, appellant was made to believe that the cheque could be encahsed at any time, thereby meaning, it could have been presented even on 1.10.1995 or on 2.10.1995. There was no case in the complaint that Rupees Two lakhs was asked some months earlier to the issuance of the cheque and a posted dated cheque was issued when the amount was paid. When appellant was examined as PW1, his case was that first respondent asked for a loan of Rupees Two lakhs in July 1995 and on CRA 1641/04 5 15.8.1995, Rupees Two lakhs was given as loan by the appellant from his house to the first respondent and then a post dated cheque showing the date 1.10.1995 was issued. If the argument of the learned counsel appearing for the appellant is to be accepted, appellant granted the loan without getting any document evidencing the loan, obtaining a post dated cheque. If that be the case, as rightly found by the learned Additional Sessions Judge, appellant, in the ordinary course, would demand interest also when a post dated cheque is issued, as otherwise. If that version is correct and for the amount borrowed on 15.8.1995 a post dated cheque was issued showing the date 1.10.1995 promising that the cheque could be encahsed at any time, appellant would, necessarily, present the cheque on 1.10.1995 or at least on the next day. If a post dated cheque was issued as spoken to by PW1, there was no need for first respondent to represent that the cheque could be encahsed on any date. That itself belies the case of a post dated cheque. The CRA 1641/04 6 cheque was presented only on 18.12.1995. If it was a post dated cheque, that will not be the case. The argument of the learned counsel is that evidence of PW1 shows that when first respondent had borrowed amount from his friend Joseph Joseph, appellant was present and at that time, a request was made by the first respondent to present the cheque only in December and therefore, the cheque was presented on 18.12.1995. Joseph Joseph was not examined to prove that request. When exactly first respondent borrowed the amount was not stated in the complaint. Though Joseph Joseph had filed a complaint, making use of one among the remaining stolen cheques, which was presented and dishonoured and first respondent was convicted for the offence under Section 138 of Negotiable Instruments Act, as per separate judgment today, the conviction was set aside finding that based on the investigation conducted by DW1 herein, a final report was submitted before the court and it was taken cognizance by the learned Magistrate and charge was CRA 1641/04 7 framed by the court against Joseph Joseph and also against the appellant. Moreover, the very case of the appellant is unbelievable considering his financial status. Though PW2 was examined to prove the transaction, his evidence is artificial and was rightly disbelieved by the learned Additional Sessions Judge. When the entire evidence is appreciated in the proper perspective, I find no reason to interfere with the order of acquittal, as the conclusions arrived at by the learned Additional Sessions Judge are the only possible conclusions that could be taken on the evidence. There is no merit in the appeal and it is dismissed. 7th June, 2010 (M.Sasidharan Nambiar, Judge) tkv