IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 CRL.A.No. 351 of 2002() ----------------------- CC.6/2001 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT(S)/ COMPLAINANT IN CC.NO.6/2001 ----------------------------------------- JOJO MATHEW, NECHUKATTU HOUSE, CHELACOMBU P.O.,KARUKACHAL, CHANGANACHERRY. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S)/ ACCUSED IN CC.NO.6/2001 -------------------------------------- 1. BINNY JOSEPH @ BINNY MARTIN, PATHICKAL HOUSE, KURISUMMODU P.O.,CHANGANACHERRY, KOTTAYAM. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECOTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J ------------------------------------ CRL.A.No. 351 OF 2002 --------------------------------------- Dated this the 19th day of March, 2009 JUDGMENT Complainant is the appellant. His complaint against the first respondent, hereinafter referred to as 'the accused', for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, 'the N.I. Act', after trial, ended in a judgment of acquittal of the accused. Impeaching the correctness of that acquittal, the complainant has preferred this appeal. 2. The case of the complainant is that the accused towards discharge of a loan availed issued Ext. P1 cheque for a sum of Rs. 3,40,000/- promising its encashment on presentation in due course. The cheque presented was, however, dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour of the cheque and demanding the sum covered by the instrument was acknowledged, but not responded with payment. The complainant, thereupon, launched prosecution against the accused for the offence under Section 138 of the N.I. Act. 3. The accused, on appearance before the court, pleaded Crl.A.No. 351/2002 -2- not guilty when the particulars of the offence were made known. Complainant examined himself as PW1 and got marked Exts. P1 to P8 to prove his case. The accused during the course of the cross examination of the complainant, examined as PW1, and also when questioned under Section 313 Crl.P.C. advanced a defence that she had no transaction whatsoever with the complainant and the cheque had been issued in blank form with signature alone, as a security to collect the prize amount of chitty subscribed by her husband and conducted by the complainant as its foreman. She also examined her husband as DW1, who gave evidence that he had subscribed to five number of chitties, each having a sala of Rs. One lakh, in the chitty company of the complainant. Two chitties had been prized, and the subscriptions due under all the chitties was Rs. 500/- per day. To collect the amount of the two chitties prized, each having sala of Rs. One lakh, signed cheques, stamp paper and pronotes were collected as security. The chitties prized, were later closed adjusting the subscriptions made in the remaining three unprized chitties, but, the documents collected as security for future payments under the prized chitties were not returned, Crl.A.No. 351/2002 -3- was the defence version canvassed by the accused. 4. The learned Magistrate after appreciating the materials tendered by both sides came to the conclusion that the defence version presented by the accused was probable and the case of the complainant as to the issue of Ext. P1 cheque towards discharge of a liability under a loan transaction as alleged was unbelievable. In taking that view of the matter, the impugned judgment of acquittal was rendered absolving the accused of the offence imputed. Challenging the legality and correctness of the decision of the learned Magistrate, the complainant has filed this appeal. 5. Despite service of notice, the respondent/accused has not entered appearance. 6. I heard the learned counsel for the complainant. Though several grounds are urged in the memorandum of appeal to impeach the impugned judgment passed by the learned Magistrate acquitting of the accused of the offence imputed, at the time of hearing, the learned counsel confined his submissions to seek remission of the case, after setting aside the judgment, to prove the transaction alleged by the complainant that the Crl.A.No. 351/2002 -4- cheque had been issued towards discharge of liability arising out of loan availed by the accused. Complainant be provided with one more opportunity to prove the transaction alleged in his complaint, is the plea canvassed. Perusing the records of the case to examine the merit of the plea for the remission, for the entitlement of which no special circumstance was shown, I find the case of the complainant as regards the loan transaction for the issue of Ext. P1 cheque stand discredited by his own evidence and that no useful purpose will be served by remitting the case. The foreman of a chitty company conducting chitties with prize value of Rs. One lakh per chitty, who, admittedly collects security by pronotes apart from getting signed documents for releasing the prized chitty amount, was unlikely to extend Rs. 3,40,000/- as loan to the complainant, a lady, even if she is his relative, without collecting any security. Even by the admission of the complainant, as seen from his evidence, Ext. P1 cheque was handed over towards discharge of the alleged loan two days before the date shown in the instrument, by the complainant coming to his office with her aunt. The learned Magistrate who had the opportunity to see the demeanour and deportment of the Crl.A.No. 351/2002 -5- complainant examined PW1, the accused who faced the trial and her husband, examined as DW1, had formed the conclusion, after analysing the facts and circumstances involved, that the defence version is probable and the case of the complainant as regards the issue of the Ext. P1 cheque for a sum of Rs. 3,40,000/- towards discharge of a liability covered by a loan is not worthy of acceptance. Needless to point out that the accused is not bound to prove his defence beyond the shadow of doubt, but only show that his version is probable. The view taken by the learned Magistrate in the proved facts of the case that the defence version is probable and the transaction alleged by the complainant relating to Ext. P1 cheque was unacceptable cannot be found fault with. Remission of the case, after setting aside the impugned judgment, as requested by the learned counsel for the complainant, for which no justifiable ground has been established, in the given facts of the case cannot be entertained. I do not find any merit in the appeal. Appeal is dismissed. S.S. SATHEESACHANDRAN, JUDGE vkm