IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 CRL.A.No. 1318 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.434/2004 Dated 19/07/2004 CC.694/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... APPELLANT: COMPLAINANT ---------------------- V.K.BABU, S/O.KESAVAN, VALIPARAMBIL, KAZHIMBRAM, VALAPAD, CHAVAKKAD. BY ADV. SRI.V.RAJAGOPAL RESPONDENTS: 1ST ACCUSED ------------------------ 1. V.S.BABU, S/O.SIVARAMAN, VALIPARAMBIL, KAZHIMBRAM, VALAPAD, CHAVAKKAD. 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.1318 of 2004 ------------------------------------- Dated this the 2nd day of September, 2008 JUDGMENT This appeal is preferred under Section 378(4) Cr.P.C by the appellant who is the complainant in a private complaint alleging offences punishable under Section 420 r/w 34 I.P.C. Altogether there were two accused persons. The 1st respondent herein is the 1st accused. The crux of the allegations against the accused persons is that they approached the complainant and availed a loan of Rs.2 lakhs promising to return the same after 6 months. After 6 months, when the amount was demanded, a cheque was issued by the accused persons towards discharge of liability in the loan transaction. The loan was allegedly availed on 12.03.98. When the accused were approached for return of the amount, a cheque was issued which was to be encashed on 19.09.99. According to the complainant, the cheque was signed by the 1st accused in the presence of the complainant. The same was presented for encashment. It was dishonoured. It was revealed that it was not a cheque drawn on any account maintained by the 1st accused. The the said account was maintained by the 2nd accused in the name of a business establishment, of which he was the proprietor. The cheque of that account maintained by Crl.Appeal. No.1318 of 2004 2 the 2nd respondent was signed by the 1st accused fraudulently. It was alleged in these circumstances that both the accused had committed the offence punishable under Section 420 r/w 34 I.P.C. 2. Precharge enquiry was conducted. Charge was framed under Section 420 I.P.C. The 1st accused, who alone was available for trial, denied the offence alleged against him. There was the evidence of Pws 1 to 3 and Exts.P1 to P7 on the side of the complainant. The accused, in the course of cross examination of Pws 1 to 3 and when examined under Section 313 Cr.P.C, took up the stand that he had no business transaction with the complainant and that at any rate he had not agreed to repay the amount or issued any cheque to the complainant. According to him, he had nothing to do with the cheque produced. 3. PW1 is the complainant. PW 3 is the manager (Karyasthan of PW1). He was examined to prove the alleged monetary transaction of loan of Rs.2 lakhs at the first instance. PW3 is the manager of the Bank where the 2nd accused had maintained the account in question in the name of a partnership firm. Ext.P1 is the cheque. Ext.P2 is the dishonour memo. Exts.P3 and P4 are the copy of the lawyer notice and the Crl.Appeal. No.1318 of 2004 3 undelivered cover. Ext.P5 is the account opening form in the name of the partnership firm and Ext.P6 is the copy of the ledger maintained by the Bank. Ext.P7 is copy of the register maintained by the bank showing return of cheques. 4. No defence evidence was adduced by the accused. The learned Magistrate on an anxious consideration of all the relevant circumstances came to the conclusion that the complainant has not succeeded in proving the ingredients of the offence punishable under Section 420 I.P.C against the 1st accused, the respondent herein. Accordingly the learned Magistrate proceeded to pass the impugned judgment of acquittal. The case against the 2nd accused was split up and refiled. 5. The respondent/accused though served has not chosen to enter appearance. The learned counsel for the appellant has advanced his arguments. Arguments have been heard. Records have been perused. 6. The learned counsel for the appellant submits that the learned Magistrate had erred grossly in coming to the conclusion that the appellant/complainant has not succeeded in establishing all ingredients of the offence punishable under Section 420 I.P.C. Crl.Appeal. No.1318 of 2004 4 7. I am unable to agree with the learned counsel for the appellant. Even accepting the entire allegations it was only a breach of promise to repay the loan amount and the dishonour of a cheque issued for such discharge. No inducement is shown to exist to warrant a conclusion that the victim/complainant was compelled to do or omit to do any act which he would not have done but for the false representation and the inducement thereby. 8. The 1st respondent had taken up a contention that he had not signed the cheque at all. Except the self serving evidence of the appellant as PW1, no material whatsoever is available to conclude that as a matter of fact the 1st accused/respondent herein had actually signed the cheque. Expert's evidence is not procured. We have only the oral evidence of PW1 on this aspect. Admittedly the cheque was not issued on any account maintained by the respondent/1st accused. 9. I am, in these circumstances, of the opinion that the impugned verdict of not guilty and acquittal do not suffer from any such vice which can justify or warrant the invocation of the jurisdiction of this Court sitting as a Court of Appeal considering the challenge against a judgment of acquittal. Crl.Appeal. No.1318 of 2004 5 10. For the reason that the signature of the accused in the cheque has not been proved satisfactorily as also for the reason that the element of fraudulent inducement for the purpose of deception has not proved, I am satisfied that the judgment of acquittal does not warrant interference. 11. This Appeal is, in these circumstances, dismissed. The impugned judgment of acquittal is upheld. (R.BASANT, JUDGE) rtr/-