IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 CRL.A.No. 616 of 2003(B) ------------------------ CC.217/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... APPELLANT/COMPLAINANT: ------------------------------------------ JOSE THOMAS, S/O. THOMAS, KALARICKAL VEEDU, URULIKUNNAM KARA, ELIKKULAM VILLAGE, MADUKKAKUNNU P.O. KOTTAYAM DIST. BY ADV. SRI.M.M.SAIDU MUHAMMED RESPONDENTS/ STATE & ACCUSED: --------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOSEPH KURIAN, S/O. KURIAN KOOTTANAL VEEDU, URULIKUNNAM KARA, ELIKKULAM VILLAGE, MADUKKAKUNNU P.O. KOTTAYAM DIST. R1 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN ADV. SRI.NOBLE MATHEW FOR R2 SRI.PRAKASH KESAVAN FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON 15/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 616 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ..th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 217 of 2000 on the file of the Judicial First Class Magistrate - II, Kanjirapally. The second respondent herein was the accused in that case, which was filed by the complainant alleging the offence punishable under Section 138 of the N.I. Act. 2. The case of the complainant in brief is that the accused borrowed a sum of Rs.3 lakhs from the complainant on 12-3- 2009 and in discharge of that liability the accused issued a cheque for Rs.3 lakhs drawn on the Service Co-operative Bank, Elamgulam on 9-4-2000. On presentation for encashment, the cheque was dishonoured for want of sufficient fund in the account of the accused. The complainant issued statutory demand notice to the accused within the prescribed time limit. Crl.A. No. 616 of 2003 2 The accused received the notice, but failed to pay the cheque amount. 3. In the Magistrate Court, on the side of the complainant he himself was examined as PW1 and Exts.P1 to P8 series were marked. On the side of the accused, Dws.1 to DW3 were examined and Ext.D1 was marked. The learned Magistrate, on considering the evidence, found that the complainant failed to prove the case against the accused and therefore the accused was found not guilty of the offence punishable under Section 138 of the N.I. Act and he was acquitted under Sec.255(1) of Cr.P.C. Against that judgment of acquittal, the complainant filed this appeal. 4. Heard learned counsel for the appellant and learned counsel for the second respondent. 5. The learned counsel for the appellant submitted that the court below ought to have held that the evidence of PW1 and Exts.P1 to P8 series clearly established the case against the accused. The learned counsel for the appellant further submitted that the court below ought Crl.A. No. 616 of 2003 3 to have found that the accused could not rebut the presumption under Section 139 of the N.I. Act even by preponderance of probabilities. The learned counsel for the appellant submitted that the court below ought not have given much weight to Ext.D1 to the case in hand especially when DW3 did not support the defence and more over there is nothing in Ext.D1 which indicates any connection with the cheque involved in the case or any transaction between the complainant and the accused. The learned counsel for the appellant further submitted that the court below ought to have found that the defence had no satisfactory explanation as to how Ext.P1 cheque came into the possession of the complainant. The learned counsel for the second respondent/accused supported the judgment of the court below. 6. In the court below, the complainant was examined as PW1. PW1 deposed that on 12.3.2000 the accused borrowed Rs.3 lakhs from him. When he demanded the money, the accused came to his house and executed a cheque for Rs.3 lakhs dated 9.4.2000 in favour of Crl.A. No. 616 of 2003 4 him. The said cheque was marked as Ext.P1. When he presented the cheque for encashment through his bank, it was returned on 26.4.2000 for the reason of insufficiency of funds in the account of the accused. The complainant has produced the dishonour memos issued from the bank, which were marked as Exts.P3 and P4. The memo intimating the dishonour of the cheque issued from the State Bank of Travancore, Poovarani branch also was produced as Ext.P4. On 28.4.2000, a lawyer notice was issued to the accused at his instance. The postal receipt thereto was marked as Ext.P5. The office copy of the said notice was marked as Ext.P6. The said notice was received by the accused on 4.5.2000. The postal acknowledgment card duly signed by the accused was marked as Ext.P7. 7. The complainant has produced the certified copies of the bank records pertaining to the account of the accused. Those records were marked as Ext.P8 series (4 in numbers). Those are the certified copies of the account opening form in the name of the accused, account ledger Crl.A. No. 616 of 2003 5 folio, the cheque issue register and the cheque returning register. 8. When the accused was questioned under Section 313 Cr.P.C. he filed a statement to the effect that he had money transaction with the complainant during 1987 - 1998 and that transaction was fully settled and the complainant had received money and furniture from the accused towards that money transaction and the complainant had written up the accounts in his handwriting in the presence of mediators and that account is produced before the Court, which was marked as Ext.D1. The accused further stated that the accused was the President and the complainant was the Vice President of Urulikunnam Rubber Ulpadaka Sangham for 4 to 5 years and during that period the accused used his personal cheque for the need of that Sangham and he used to place blank signed cheque in the drawer of the table in the office of that Sangham and the accused believes that during that period the complainant might have stolen one such cheque and misused that cheque for the purpose of filing this complaint. Crl.A. No. 616 of 2003 6 9. When PW1 was cross examined, he admitted that he was the Vice President and the accused was the President of the above Sangham and that he knew the accused for 5 to 6 years. PW1 deposed that he had no other money transaction other than Ext.P1 cheque transaction with the accused. According to PW1, 2 to 3 years prior to the lending of money to the accused, PW1 had sold Anjili and teakwood trees from his property and obtained Rs. 9,80,000/- in total and he had not deposited that amount in any bank. PW1 deposed that he knew the accused for 5 to 6 years only and he lent Rs. 3 lakhs to him without demanding any interest and without obtaining any document. 10. PW1 admitted that at the time of lending of money to the accused, he had no knowledge about the trustworthiness of the accused in money transaction. PW1 admitted that Ext.P1 cheque was filled up by him in his handwriting as per the instruction of the accused. But according to the accused PW1 might have stolen one Crl.A. No. 616 of 2003 7 signed blank cheque of the accused, which was placed by the accused in the table of that Sangham office while he was working as the President and PW1 as the Vice President. 11. According to the accused, he had money transaction with the complainant. But that was in 1987 and thereafter he had repaid all the amounts borrowed from PW1 and that he had paid Rs. 27,965.75 in excess. In order to substantiate his case, the accused produced Ext.D1 statement of accounts, which is in the handwriting of PW1. PW1 admitted that Ext.D1 is in his handwriting. In Ext.D1 it is not mentioned who is the payer and who is the payee. But in it, it is mentioned as 'patte and varavu'. PW1 explains that he wrote it for one Mathukutty regarding money transaction between Mathukutty and the accused. DW3 is that Mathukutty, who was examined on the side of the accused and he was cross examined by the accused stating that he had turned hostile. Crl.A. No. 616 of 2003 8 12. The defence version regarding Ext.D1 is that some mediators intervened in the dispute between the accused and the complainant. The conciliation talk was made at the house of the complainant's brother, who was examined as DW1. One of the other mediators was P.C. Thomas, who was examined as DW2. These two witnesses stated that they had intervened in a money dispute between the parties and negotiations were made upon a written statement of account. But they are unable to reproduce the statement of account, as it is not easier to remember it. 13. It has come out in evidence that DW1, the brother of the complainant, is not in good terms with the complainant and DW2 is a friend of the accused. It has also come out in evidence that the complainant and DW3, who supported the case of the complainant, are close friends and that DW3 is in inimical terms with the accused. Therefore, no definite conclusion could be arrived based on their testimony. Crl.A. No. 616 of 2003 9 14. In the complaint it is stated that on 12.3.2000 the accused came to the house of the complainant and borrowed Rs. 3 lakhs and when he demanded back that amount, on 9.4.2000 the accused came to his house and executed Ext.P1 cheque. From this statement it is clear that on 12.3.2000 when Rs. 3 lakhs was handed over to the accused the complainant did not obtain any document from the accused. PW1 admits that when the accused issued Ext.P1 cheque of Elamgulam Service Co-operative bank, that bank was facing with severe problems and he was aware of that fact to some extent and that he had not told the accused that he does not want the cheque of a bank facing that financial crisis. The learned Magistrate observed that it is unbelievable to say that PW1 would keep Rs. 9 lakhs and more as liquid cash with him for years and that he would lend Rs. 3 lakhs to the accused when the complainant knew him only for 5 to 6 years without ascertaining his paying capacity and without demanding any interest or receipt from him. Crl.A. No. 616 of 2003 10 15. Considering all these aspects of the matter, I am of the view that the materials produced disclosed some suspicious circumstances surrounding the transaction and the transaction covered by the cheque is not genuine or bonafide. Therefore, the learned Magistrate is perfectly justified in finding that the complainant failed to prove his case against the accused. The appellate court, in considering the appeal against the judgment of acquittal, is to interfere only when there are compelling and substantial reasons for doing so. Since the judgment of acquittal of the learned Magistrate is based on reasonable and plausible grounds, I find no reason to interfere with that judgment of acquittal. 12. Accordingly this appeal is dismissed, as it is without any merits. (M.L. JOSEPH FRANCIS) Judge tm Crl.A. No. 616 of 2003 11