IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.A.No. 856 of 2003() --------------------------------- CC.286/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT/COMPLAINANT ---------------------------------------- SAJEEV K.S., S/O.SUKUMARAN, KOTHAPARAMBIL HOUSE, ELAMKULAM, CHEMMATHU ROAD, KOCHI. BY ADV. MR.C.AJITH KUMAR (KALLESSERIL) MR.C.ANILKUMAR (KALLESSERIL) RESPONDENT/ACCUSED AND STATE ----------------------------------------------------- 1. PUSHPAVALLI VASUDEVAN, E.W.S. 814, GANDHI NAGAR, KOCHI. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R1 BY ADV. MR.PHILIP T.VARGHESE, MR.THOMAS T.VARGHESE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.856 OF 2003 ------------------------------ Dated this the 10th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal in C.C.No.286/2000 of the JFCM-II, Aluva. It is the case of the complainant that the accused had borrowed a sum of Rs.25,000/= and towards the discharge of the liability, had issued a cheque, which when presented for encashment, returned with the endorsement of insufficiency of funds. Thereafter a statutory notice was issued and on account of the non-payment, prosecution was initiated under Section 138 of the N.I.Act. The case of the defence appears to be that on two occasions she had borrowed a sum of Rs.10,000/= each from the complainant and at the time of borrowal, she had given a blank signed cheque as early as in the year 1997 which had been utilised by the complainant to file a false case of this nature. 2. The trial court, on analysis of the materials, arrived at a decision that the case put up by the accused appears to be 2 CRL.A.NO.856/03 more probable and acceptable and therefore did not accept the evidence of execution of the cheque by the accused in favour of the complainant. In a 138 N.I.Act case, the necessary ingredients to be established are that the cheque has been issued towards the discharge of the liability and which when presented for encashment was returned for insufficiency of funds. The fact that which has been returned for insufficiency of funds is established in this case. But the question to be considered is whether it was issued towards the discharge of the liability and whether it was issued by the accused for that purpose. The complaint is absolutely silent about the date of advancement of the amount. The complaint is also silent about the date of issuance of the cheque. One would expect a complainant to aver at least these basic ingredients in the complaint. It is in this backdrop, we have to analyse the case. The accused in this case is running a tea shop. It is her case that she had borrowed the amount twice from the complainant who is a money lender. She had produced Ext.D1 account book and the signature against the entry in Ext.D1 account book which is marked as Exts.D1(a) 3 CRL.A.NO.856/03 and (b) has been admitted by the complainant. It relates to the period August 1998 as well as June 1998. It shows that the accused had paid at the rate of Rs.150/- per day and it is seen initialed by the complainant. When confronted with such a difficult situation, he would depose that the accused owed the amount to one Noushad and it was towards the amount due to Noushad the entries were written and he had initialed it. But the heading of Ext.D1(a) itself shows that it is written as Sajeevan. One cannot digest that every day a third person endorsing the receipt of an amount of another person with whom he had no direct connections. So, this is a telling circumstance in this case regarding the probability of the case alleged by the accused. Then it has to be again borne in mind that a loose cheque leaf was obtained in the month of July, 1997 by the accused. It has to be remembered that a solitary loose cheque is obtained normally only for the immediate use whereas if the case of the complainant as is accepted, it has been used only after a period of at least 2 ½ years. That also shows that the case of the accused that a blank signed cheque was given at the time of advancement 4 CRL.A.NO.856/03 of Rs.10,000/= appears to be more probable and acceptable. So, these are telling circumstances which would indicate that the evidence adduced by PW1 is not satisfactory or sufficient that Ext.P1 cheque is issued towards the discharge of the liability. Therefore, I do not find any ground to interfere with the said decision rendered by the court below. So far as the other ingredients are concerned, when the basic ingredient is missing, the other will not survive and therefore the order of acquittal does not call for any interference. So, the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.856/03 M.N. KRISHNAN, J. CRL.A.NO.856 OF 2003 JUDGMENT 10th day of June, 2009 6 CRL.A.NO.856/03 7 CRL.A.NO.856/03