IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRL.A.No. 118 of 2002() ----------------------- ST.2242/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONER/COMPLAINANT ---------------------- HONEY.V.SAMUEL,NADASPURAYIL,CHEPPAD VILLAGE,MUTTOM,HARIPAD. BY ADV. SRI.JOMY GEORGE RESPONDENTS/ACCUSED AND STATE ------------------------------ 1. RAJENDRAN,SHEEJA BHAVAN,KOTTACHIRA, PALLIKAL P.O.,KAYAMKULAM. 2. STATE OF KERAL,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SRI.K.HARILAL FOR R1 SRI.R.GOPAN FOR R1 PUBLIC PROSECUTOR, SRI.AMJETH ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. -------------------------------------- Crl. Appeal. No.118 OF 2002 -------------------------------------- Dated this the 3rd day of June, 2008 J U D G M E N T ~~~~~~~~ This appeal which is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instrument Act, is directed against the order of acquittal passed by the trial court. The learned Magistrate while acquitting respondent No.1/accused held that the appellant/complainant had failed to prove that Ext.P1 cheque was issued in discharge of a legally enforceable debt or liability. 2. The case of the complainant before the court below was that accused had borrowed a sum of Rs. 35,000/- from him on 2.5.1998 with a promise to repay the same with interest on 2.6.1998. The accused had issued Ext.P1 cheque in discharge of the said debt. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The accused did not repay the amount inspite of the statutory demand notice issued by the complainant. Hence the complaint. Crl.Appeal.No.118/2002 2 3. The complainant was examined as PW1 and Exts.P1 to P4 were marked on his side. The accused and his witness were examined as DW1 and DW2 respectively. 4. The defence set up by the accused was that he had not borrowed any money from the complainant as alleged. He happened to hand over Ext.P1 cheque for Rs.35,000/- to the complainant as security at the time when he had hired three tipper lorries belonging to the complainant for the purpose of some earth work in connection with a construction at the site of the NTPC. The learned Magistrate found that the defence version was more probable and believable and held that the complainant had failed to establish that Ext.P1 cheque was issued by the accused in discharge of any debt or liability. 5. While assailing the judgment of the trial court, it is contended by the learned counsel for the appellant that the court below was not justified in overlooking the provisions contained in Section 118 of the Act. Similarly, the accused had not discharged the burden cast upon him under Section 139 of the Crl.Appeal.No.118/2002 3 Act as well. I am unable to agree. 6. As mentioned earlier, the accused was examined as DW1 in the case. In his deposition he had asserted that he had hired three tipper lorries belonging to the complainant for the purpose of some earth work at the construction site. He had utilised the services of the tipper lorries for a few weeks. But when the drivers of the vehicles refused to take sufficient load as desired by the accused, he was constrained to send back the lorries to the complainant. Though the accused had requested the complainant to return the cheque entrusted to him as security, the request was turned down. 7. It is significant to note that the assertions made by the accused in his deposition were not challenged or disputed by the complainant at all. One question put to DW1 in cross examination was whether he knew in whose name the vehicles stood. The other question appeared to be relating to the place from where the lorries had been handed over for the purpose of work. Nothing more nothing less. DW2 who was stated to be Crl.Appeal.No.118/2002 4 the supervisor at the work site, had corroborated the version given by DW1. His evidence was also not controverted or challenged by the complainant. The learned Magistrate had the advantage of seeing the demeanor of the parties and witnesses. In my view, the learned Magistrate had evaluated the oral and documentary evidence on record satisfactorily and come to a right conclusion. Having perused the materials available on record, I do not find any illegality or irregularity in the finding entered by the learned Magistrate. There is no reason to interfere with the order of acquittal passed by the court below. There is no merit in the appeal. It is accordingly dismissed. (A.K.BASHEER, JUDGE) ps Crl.Appeal.No.118/2002 5 A.K.BASHEER, J =================== CRL.APPEAL NO.118 OF 2002-A =================== JUDGMENT DATED 3RD JUNE 2008 ==============================