IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH JUNE 2009 / RD ASHADHA 1931 Crl.L.P..No. 445 of 2009() ---------------------------------- STC.2659/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I.,KOTTAYAM .................... PETITIONER/COMPLAINANT ----------------------------------------- K.G. BALAKRISHNAN, S/O.GOVINDAN, KALAYIL HOUSE, KOLLADU P.O., PANACHIKKADU, KOTTAYAM. BY ADV. MR.C.S.MANILAL RESPONDENTS/ACCUSED AND STATE: -------------------------------------------------------- 1. K.G. PRASANNAKUMAR, KUZHIMATTATHIL HOUSE, MARIYATHURUTHU P.O., KOTTAYAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/06/2009, ALONG WITH CRL.LP.446 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl.L.P. NOS. 445 AND 446 OF 2009 = = = = = = = = = = = = = = = Dated this the 24th day of June, 2009. O R D E R Both these special leave petitions are filed against the order of acquittal in S.T.2659/06 and 2660/06 of the Judicial First Class Magistrate, Kottayam. It is the case of the complainant that he had advanced a sum of Rs.1,20,000/- each to the husband and wife and towards the discharge of the liability they had issued cheques which when presented for encashment returned with insufficiency of funds. After sending statutory notice the action has been initiated. The accused in both the cases had denied the transaction but would contend that when the husband had borrowed a sum of Rs.15,000/- cheques had been taken from them and it had been misused for filing the case. It is also contended that the complainant is a money lender. 2. In support of the case the complainant got himself examined as PW1 and another witness was examined as PW2. Crl.L.P. Nos. 445 & 446 OF 2009 -2- PW1 as witness would reveal that he was not having a liquid cash of Rs.2,40,000/- on that day and therefore he had taken Rs.2,00,000/- which was due to him from his friend and along with Rs.40,000/- handed over the amount to the accused in S.T.2659/06. It has to be remembered that the person from whom the amount is alleged to have been taken is not examined whereas another witness is examined to prove the transaction. The evidence of that witness had been commented upon by the Court below on the ground that it is of conflicting nature in the two cases. The very version of the said witness had been extracted in the judgment in S.T.2660/06. It is seen that the term for repayment was settled only when the amount was about to be advanced and if really the parties had previously talked over the matter there would have been some basis in the contention that the date in the cheque would have been written and cheque brought to the residence of the parties for being handed over. Therefore the Court found that the evidence of PW2 is not correct and it is only an attempt to explain away the difference of Crl.L.P. Nos. 445 & 446 OF 2009 -3- handwriting seen in the cheque. The source of consideration is not established. The evidence of PW1 as discussed by the Court below appears to be also not acceptable and nobody would lend such a huge sum without any document appears to be correct and therefore I find there are no grounds to interfere with the decision rendered by the Court below in these cases. Therefore the special leave is refused in these Crl.L.Ps. M.N. KRISHNAN, JUDGE. ul/-