IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 CRL.A.No. 1148 of 2002 ------------------------ CC.200/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... APPELLANT: COMPLAINANT ------------------------------ K.V.DAVI, S/O. VAREETH, KIDANGAN HOUSE, KUMARANELLUR P.O., TRICHUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: ACCUSED AND STATE ------------------------------------------ 1. V.P.VARUNNY, S/O. PAUL KUNJIPALU, VADAKKAN HOUSE, WADAKKANCHERY VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) R2 BY PUBLIC PROSECUTOR, SRI.C.M. KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1148 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August 2008 JUDGMENT This appeal is at the instance of the complainant in a prosecution under Section 420 IPC and Section 138 of the Negotiable Instruments Act. He impugns the order of acquittal passed by the trial court. 2. The case of the complainant before the trial court was that, the accused had borrowed a sum of Rs.84,500/- from him in April 1998, promising that it would be returned within one month. After repeated demands made by the complainant, the accused issued a post dated cheque for the above sum of Rs.84,500/-. The said cheque dated February 27, 1999 was handed over by the accused to the complainant on July 7, 1998. According to the complainant he was assured by the accused that the cheque would be honoured on presentation. But the above promise turned out to be false since the cheque was dishonoured by the Bank on presentation with the endorsement “account closed”. To the statutory notice issued by the complainant, a reply was sent by the accused denying the liability. Crl.A.: 1148/02 -:2:- Hence the complaint. 3. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. There was no oral or documentary evidence on the side of the accused. 4. The defence set up by the accused was that some time in 1997, he happened to borrow a sum of Rs.2,000/- from the complainant. At that time, he had handed over a singed blank cheque to the complainant as a security in addition to a stamped receipt. When the amount was repaid by the accused, the stamped receipt was returned but the cheque was not. The complainant promised that it would be traced out and handed over to him later. Since the cheque was not returned by the complainant, the accused had closed his account in 1997 itself. The accused further contended that he had no occasion to borrow Rs.84,500/- from the complainant especially since the complainant had no capacity to advance such a huge sum. 5. The learned Magistrate had evaluated the oral and documentary evidence on record elaborately. It was noticed by the learned Magistrate that the case of the accused was more probable. Crl.A.: 1148/02 -:3:- I have also gone through the deposition of PW1 and perused the documents produced in the case. The case of the complainant was that he had lent a sum of Rs.84,500/- some time in April 1997. According to the complainant, he used to lend money like that not only to the accused but to several of his acquaintances. He never bothered to obtain any receipts or documents whenever he advanced money like that. PW1 further admitted that he had not taken any document from the accused when he paid Rs.84,500/- to him in cash in April 1997. 6. The complainant further stated that the accused had handed over a post dated cheque for the above sum in July 1998. The cheque was dated February 27, 1999. It had come out in evidence that the account of the accused had been closed. That was the reason stated for dishonour of the cheque. PW1 conceded that he did not know when the account of the accused had been closed. The complainant had not examined any official of the bank, at least to make an attempt to bring on record the date of closure. It may be remembered that complainant had a case that the accused had committed the offence punishable under Section 420 IPC as well, by Crl.A.: 1148/02 -:4:- issuing a post dated cheque with the promise that it would be honoured when presented for encashment. Though in cross examination PW1 stated that he had lent the money in April, 1997, he had no such case in the complaint. The suggestion made on behalf of the accused in the course of cross examination was that the accused had not borrowed such a huge sum from the complainant as alleged. The specific case of the accused was that Ext.P1 cheque was the blank signed cheque handed over by him some time in 1997, when he borrowed Rs.2,000/- from the complainant. Therefore, the burden was very heavy on the complainant to prove that Ext.P1 cheque was supported by consideration and also that it was issued in discharge of a legally enforceable liability. 7. On a careful perusal of the deposition of PW1, I am not at all satisfied that the complainant had discharged the burden cast on him. The onus of proof had never shifted. The complainant had totally failed to establish that he had lent Rs.84,500/- even without obtaining any receipt, as contented by him or that Ext.P1 cheque was issued by the accused in discharge of any liability. On the whole, the case of the complainant cannot be believed at all. I do not find Crl.A.: 1148/02 -:5:- any reason to interfere with the finding entered by the learned Magistrate. There is no merit in the appeal. It is accordingly dismissed. (A.K.BASHEER, JUDGE) ttb