IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 CRL.A.No. 206 of 2003 ------------------------------------ ST.1058/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... APPELLANT/PETITIONER-COMPLAINANT: M.K.MADHAVAN, KOVILAKATHU MURI, NILAMBUR P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT/RESPONDENT/ACCUSED AND STATE: 1. T.M.JAYAN, S/O. T.S.MANI ACHARI, THAYYAMMAL HOUSE, CHAKALAKUTHU, NILAMBUR, MALAPPURAM DISTRICT. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.SUNNY MATHEW FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.206 of 2003 -------------------------- JUDGMENT The complainant in S.T.No.1058/1996 on the file of Judicial First Class Magistrate's Court, Nilambur filed this appeal challenging the order of acquittal. Appellant filed a complaint against the first respondent alleging that on 5.1.1996, first respondent borrowed Rs.45,000/- and towards its repayment, issued Exhibit P1 cheque drawn in his account showing the date 21.3.1996 and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and in spite of issuing notice demanding the amount covered by the dishonoured cheque, first respondent did not pay the amount and thereby, he committed the offence under Section 138 of Negotiable Instruments Act. 2. First respondent pleaded not guilty. Appellant was examined as PW1 and marked Exhibits CRA 206/03 2 P1 to P7. First respondent was examined as DW1. 3. First respondent contended that he did not borrow Rs.45,000/- and did not issue Exhibit P1 cheque towards discharge of any debt or liability and instead, he had borrowed Rs.15,000/- and issued a signed blank cheque as security at that time and he had subsequently paid the amount, but, demanding Rs.5,000/- as interest, the cheque was not returned and after filling up that cheque, it was presented and got it dishonoured and therefore, he is not liable to be convicted. 4. Learned Magistrate, on the evidence, found the first respondent not guilty. Learned Magistrate found that as per the complaint, the cheque was not issued subsequently when repayment was demanded and from the evidence of PW1, it is not proved that Exhibit P1 cheque was issued towards discharge of any debt or liability. 5. Argument of the learned counsel is that evidence of the first respondent as DW1 establishes that there were several witnesses when he borrowed CRA 206/03 3 the amount and issued the the cheque and none of them was examined and on the evidence, learned Magistrate was not justified in acquitting the first respondent. 6. I have gone through the pleadings in the complaint and the evidence of the appellant as PW1 and first respondent as DW1. As rightly found by the learned Magistrate, on a reading of the complaint, it is evident that the case of the appellant was that first respondent borrowed Rs.45,000/- on 5.1.1996 and towards its repayment, the dishonoured cheque was issued. The case is not that when first respondent failed to pay that amount and appellant demanded the amount, Exhibit P1 cheque was issued. On the other hand, the averment in the complaint is only to the effect that cheque was also issued on the date of borrowal itself. When PW1 was examined, his case was that first respondent borrowed Rs.45,000/- on 5.1.1996 promising to repay the same after two months and when it was not paid, he demanded the amount and CRA 206/03 4 then Exhibit P1 cheque was issued. Even then, evidence is not that the cheque was issued on 21.3.1996, but, the cheque showing the date 21.3.1996 was issued, which indicates that the cheque was not issued on 21.3.1996. On the evidence on record, the order of acquittal cannot be interfered. 7. It is the specific case of the first respondent that he did not issue Exhibit P1 cheque towards discharge of Rs.45,000/- borrowed and instead, it was issued as a signed blank cheque at the time when he borrowed Rs.15,000/-. The case is that except the signature, nothing was written in the cheque at that time. When appellant was examined as PW1, it was suggested that the cheque was issued without writing as security. True, appellant denied it. But, neither in chief examination nor in cross-examination, PW1 had a case that the cheque was written and brought before him and it was signed in his presence and handed over to him. He had only stated that first CRA 206/03 5 respondent issued the cheque. In cross-examination, PW1 admitted that the handwriting in Exhibit P1 cheque is different from the signature. So also, the ink. When first respondent was examined, in chief examination, he deposed that he had handed over Exhibit P1 cheque after putting his signature alone and nothing was written in the cheque at that time. Still, that evidence of DW1 was not challenged in cross-examination. When it is appreciated in the light of the admission of the appellant that the handwriting and the ink used for writing the cheque and putting the signature are different, it can only be found that appellant did not establish that Exhibit P1 cheque was issued by the first respondent towards discharge of any debt or liability. In such circumstances, I find no reason to interfere with the order of acquittal. Appeal fails and it is dismissed. 19th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 206/03 6 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.206 of 2003 -------------------------- JUDGMENT 19th July, 2010