IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRL.A.No. 1895 of 2003() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.502/2003 Dated 05/11/2003 CC.60/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... APPELLANT/COMPLAINANT: ----------------------------------------- RAIHANATH, KATTIYODE CHAVOOR THUMPI VEEDU,VENGODE, KUDAVOOR, THIRUVANANTHAPURAM. BY ADV. MR.M.SREEKUMAR RESPONDENTS/STATE AND ACCUSED. --------------------------------------------------------- 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,. 2. SAJEEVAN, S/O.KITTAN, NATTUVETTI HOUSE, PAZHUVIL P.O. THRISSUR. R1 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. R2 BY ADV. MR.DILIP J. AKKARA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1895 OF 2003 ------------------------------ Dated this the 7th day of July, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the JFCM-II, Attingal in C.C.No.60/2001. It is the case of the complainant that the accused had borrowed a sum of Rs.2,50,000/= and towards the discharge of the liability, had issued Ext.P1 cheque, which when presented for encashment, returned with the endorsement of insufficiency of funds. Though notice was issued, a false reply was sent and thereafter the prosecution has been initiated. The case of the accused appears to be that he does not know the complainant at all and that the complainant did not have any resource to advance a sum of Rs. 2,50,000/= and on the date of the alleged transaction, he was away in Gulf country and therefore the prosecution has to fail. 2. After considering the materials available, the court below found in favour of the accused and acquitted the accused under Section 255(1) of Cr.P.C. It is against that decision, 2 CRL.A.1895/03 the complainant has preferred the appeal. 3. The point that arises for determination in the appeal is whether there is anything to interfere with the decision rendered by the court below. 4. Point: It is the case of the complainant that the accused had borrowed a sum of Rs.2,50,000/= and had issued a cheque, Ext.P1 towards the discharge of the liability, which when presented for encashment, returned with the endorsement of insufficiency of funds. The defence of the accused is that of a total denial, even the acquaintance. It is admitted by PW1 in cross examination that she was working in a textile shop having a monthly income of Rs.400/=. She had stated before the court that she had raised this amount by selling her property, pledging her ornaments and also withdrawing Rs. One lakh from the Federal Bank, Vengode. When the resource of the complainant was challenged with a total denial of transaction, it has to be proved that she had financial background to advance the amount. A reading of the evidence 3 CRL.A.1895/03 of Pw1 also would establish that she did not have much personal acquaintance with the accused. She would depose the relationship that her sister had married a person and that person and her brother were working together along with the accused and that is the acquaintance. It is a very remote acquaintance. Why should a person, who does not have any contact with the accused, pledges her ornaments, sells her property and withdraws the amount from the bank to advance a loan without document, is a matter which raises great suspicion in the mind of the court. To crown these things, the materials available in the form of Exts. D1 to D3 is sufficient to disprove the case of the complainant. These documents would show that the accused had applied for an emergency certificate and on 25.12.1999 he was deported to India. These documents would show that the accused was abroad during November, 1999. So, the case of the complainant that the accused had borrowed an amount on 10.11.1999 cannot be true. 5. I find that the court below has approached the 4 CRL.A.1895/03 matter only in the correct perspective and had acquitted the accused in accordance with law. It does not call for any interference. The criminal appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE cl 5 CRL.A.1895/03 6 CRL.A.1895/03