IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 CRL.A.No. 1883 of 2010() ------------------------ ST.1848/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... APPELLANT(S): PETITIONR/COMPLAINANT ----------------------------------- EASOW.K.UMMEN, KANGALIL HOUSE, IRINGOLE, PERUMBAVOOR. BY ADV. SRI.MANOJ RAMASWAMY RESPONDENT(S): ACCUSED ---------------------- 1. S.SIVADAS, S/O.E.V.SANKARAN, EDIYARATHU HOUSE, E.V.S. WOOD WORKS, ASAMANNOOR.P.O., ODAKKALI. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.SAIGI JACOB PALATTY FOR R1 SRI.GIMMY P ANTONY FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1883 of 2010 ---------------------------------------------- Dated 30th September, 2010. J U D G M E N T The appellant herein filed a complaint against the first respondent/accused, alleging the offence under Section 138 of the Negotiable Instruments Act. According to the complainant, he was the proprietor of the firm, viz., M/s. Finance and Real Estate and in the year 2002, accused borrowed Rs.2,90,000/- from the said firm. Towards repayment of the amount, a cheque was drawn on the Bank. The cheque, on presentation to the Bank was dishonoured. After complying with the legal formalities, a complaint was filed against first respondent before the Magistrate Court. 2. Evidence was adduced and on an analysis of the evidence on record, the trial court convicted the accused. The conviction and sentence were challenged in appeal and those were set aside. It was remanded to the trial court with certain directions. Thereafter, the case was again taken up by the trial court and the impugned order is passed, by which the accused is acquitted. Crl.A. NO.1883/2010 2 3. Heard learned counsel for appellant as well as first respondent. Learned counsel for appellant submitted that the trial court relied upon irrelevant matters and found that the accused is a habitual defaulter. The transaction in this case was in the year 2002, but the court entered a finding based on a transaction which occurred in 2003. Therefore, the order of acquittal is not sustainable. Learned counsel for the accused submitted that the court found that the case put forward by the complainant is quite improbable on the basis of cogent reasons and there is no ground to interfere with the said finding. 4. On hearing both sides and on going through the order under challenge, I find that the trial court made the following observations and findings in the impugned order: “But during the cross examination of PW1, the complainant has deposed that the accused borrowed the amount on 25.2.2002. PW1 deposed during cross examination that in 2000 the accused had borrowed Rs.95,000/- from him and he filed a civil case before the Hon'ble Sub Court, Sulthanbathery, to realise that amount from the accused. PW1 further deposed that he had demanded that amount from the accused even in 2002 also. If the above version of PW1 is true, it would show that the accused allegedly Crl.A. NO.1883/2010 3 borrowed Rs.2,90,000/- from the complainant even after the accused committed default of repayment of Rs.95,000/- borrowed from the complainant in 2000. It is not possible to believe that the complainant advanced a huge amount of Rs.2,90,000/- to the accused even after the accused had defaulted repayment of Rs.95,000/- which he had already borrowed from the complainant in 2000. ............... ................. In that circumstance no prudent man is expected to advance huge amounts to the accused, that even without obtaining any document or security from the accused. The complainant was admittedly the proprietor of a firm engaged in advancing money and real estate business. If that be so, at no stretch of imagination he is expected to advance such a huge amount of Rs.2,90,000/- to the accused even after the accused had defaulted repayment of the amount earlier borrowed from the complainant. In the above circumstance I am of the view that the case put forward by the complainant is quite improbable.” 5. It is clear from the portion extracted above that the court has relied upon certain admissions made by PW1 in evidence. The appellant has no case that no such admissions are made. In such circumstances, I find that the reasons given by the trial court for entering a finding that the case put forward by the complainant is quite improbable is only sound and acceptable. Crl.A. NO.1883/2010 4 Learned counsel for the appellant was not able to substantiate why such findings are unsustainable. Hence, I am not inclined to admit this appeal. The appeal is dismissed. K.HEMA, JUDGE. tgs