IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 CRL.A.No. 140 of 2003() ----------------------- CC.63/2001 of JUDL. MAGI. OF FIRST CLASS-I , THODUPUZHA .................... APPELLANT(S): COMPLAINANT: -------------------------- SEBASTIAN MATHEW, MANGALATH HOUSE, THOMMANKUTHU KARA, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): ACCUSED & NOT PARTY: ----------------------------------- 1. N.V.JOSE, NELLIKATTU VEEDU, THOMMANKUTHU KARA, KARIMANNOOR VILLAGE, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JOHN K.GEORGE FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.A.NO.140 OF 2003 --------------------------------------------- Dated 21st July, 2010 JUDGMENT Complainant in C.C.63/2001 on the file of Judicial First Class Magistrate-I, Thodupuzha filed this appeal challenging the order of acquittal of the first respondent for the offence under Section 138 of Negotiable Instruments Act. In the complaint appellant specifically pleaded that first respondent borrowed Rs.90,000/- on 4/9/2000, agreeing to repay the same within three months and when it was not repaid, appellant demanded for the amount and first respondent issued Ext.P1 cheque dated 18/12/2000 for Rs.90,000/- drawn in his account maintained in State Bank of Travancore, Karimanoor Branch and CRA 140/03 2 cheque when presented was dishonoured for want of sufficient funds and in spite of Ext.P4 notice demanding the amount covered by the dishonoured cheque, first respondent did not pay the amount and did not send any reply. First respondent pleaded not guilty. Appellant was examined as PW1 and Exts.P1 to P6 were marked. Contentions raised by the first respondent was that Ext.D1 reply was sent to Ext.P4 notice and in Ext.D1 reply it was contended that first respondent did not borrow Rs.90,000/- and instead he had borrowed Rs.10,000/- on 8/3/1996 and at that time towards security, blank cheque was given and appellant collected 120% of interest and he had paid Rs.61,000/- towards that amount and still he demanded Rs.90,000/- and when it was not paid, cheque was filled up and presented and CRA 140/03 3 got it dishonoured. 2. Learned Magistrate on appreciating the evidence of PW1 found that his case cannot be believed and accepted the case of the first respondent. Argument of the learned counsel is that learned Magistrate did not properly appreciate the evidence. Either for the fact that Ext.D1 reply was sent by the counsel of the appellant and it was not disclosed in the complaint or for the discrepancy with regard to the execution of the cheque, learned Magistrate should not have found the first respondent not guilty. 3. I have gone through the evidence of PW1 and specific contentions of the appellant in the complaint. As rightly found by the learned Magistrate reading of the complaint shows that it was the definite case of the CRA 140/03 4 appellant at the time when the complaint was filed, that when appellant demanded back Rs.90,000/- received by first respondent, with a promise to repay the same within three months, Ext.P1 cheque was written and signed in his presence. In chief examination also PW1 deposed that first respondent had written and signed Ext.P1 cheque in his presence. But in cross examination PW1 changed the case. He deposed that he had only seen the appellant signing Ext.P1 cheque. Therefore, evidence of PW1 in cross examination contradicts his case with regard to execution in chief examination. As evidence of PW1 stands, it is not proved that Ext.P1 cheque was executed by the first respondent. It is in background failure to mention about Ext.D1 reply is to be appreciated. First respondent in Ext.D1 reply CRA 140/03 5 has specifically contended that he did not issue Ext.P1 cheque and did not pay part of Rs.90,000/- and had borrowed only Rs.10,000/- and a blank cheque was issued at that time. Appellant did not mention anything about the correctness of the said allegation in the reply notices. It cannot be believed that appellant was unaware of the notice received by his counsel. As notice was sent by the counsel reply could only to the counsel. Complaint was also prepared and filed for the appellant by the same counsel who issued Ext.P4 notice. In such circumstances, when Ex.D1 notice was received by that counsel, in the normal course it cannot be believed that counsel will not disclose it to PW1 or that the appellant will not plead anything about the reply notice in the complaint. Appreciating the entire evidence CRA 140/03 6 in the proper perspective, the view taken by the learned Magistrate is definitely a possible view that can be taken on the evidence in an appeal against order of acquittal. When the view taken by the learned Magistrate is possible view, no interference is warranted. Appeal fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.