IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRL.A.No. 845 of 2002() --------------------------------- CC.976/1999 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... APPELLANT/ COMPLAINANT: ------------------------------------------ M. CHANDRAN, S/O. CHEKKAPPI, MANIYOTH HOUSE, PUTHUPPANAM AMSOM-DESOM, P.O. PUTHUPPANAM, VADAKARA TALUK. BY ADV. SRI.C.VATHSALAN SRI.P.M.SAJI SRI.P.M.MOHAMMED RAHAZ RESPONDENTS/ ACCUSED AND STATE: --------------------------------------------------------- 1. K.V. RAJENDRA BABU, S/O. KRISHNAN, AGED 39 YEARS, KATTIL HOUSE, PUNNOL, THALASSERY. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 845 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. He impugns the order of acquittal passed by the court below in this appeal. 2. The case of the complainant before the trial curt was that the accused who was his friend had borrowed a sum of Rs.3 lakhs from him in December 1998 for the purpose of his business agreeing to repay the same within two months. After several demands made by the complainant the accused issued Ext.P1 cheque dated March 10, 1999. The cheque was presented for encashment on September 10, 1999 as suggested by the accused but it was dishonoured due to insufficiency of funds in the account of the accused. In spite of the statutory demand notice, the liability was not discharged. Hence the complaint. 3. The complainant was examined as Pw.1 and Exts.P1 to P7 were marked on his side. Exts.D1 and D2 were marked on the side of the defence, though no oral evidence was adduced. 4. The gist of the defence set up by the accused was that the complainant had misused a blank signed cheque given to him to be delivered to one Dasan in connection with a real estate business. The case of the accused was that he and the complainant had struck a deal with one Dr.Sali of Thalassery for purchase of the property belonging to the latter. The said property was in turn sold to one Dasan referred Crl.A.845/2002. 2 to above. The accused alleged that half of the extent of the above property was in fact assigned in favour of Dasan. The remaining part was later assigned in favour of Dasan by the complainant without informing the accused. In short, it was contended by the accused that his relationship with the complainant had become strained and the complainant had misused the blank signed cheque handed over to him by the accused to be delivered to Dasan. 5. The complainant had yet another story. He stated that there was a sale agreement between the mother of the accused and himself in connection with yet another property transaction. It had also come out in evidence that the complainant had instituted a suit as OS.124/97 before the Subordinate Judge's Court, Thalassery against the accused and his mother for specific performance of the agreement for sale. According to the complainant during the pendency of the suit the mother of the accused had transferred the above property to the accused. 6. I do not propose to deal with the entire allegations and counter allegations made by the complainant and the accused in the case. Suffice it to say that the dispute between the parties was more in the realm of a civil dispute. The learned Magistrate after a careful consideration of the oral and documentary evidence on record had rightly found that the complainant had not succeeded in proving that Ext.P1 cheque was issued in discharge of any legally enforceable debt or liability. The learned Magistrate had also found that the entries in the cheque were suspect. Crl.A.845/2002. 3 7. Having perused the entire material available on record, I do not find any reason to interfere with the order of acquittal passed by the court below. The appeal fails and it is accordingly dismissed. A.K. Basheer an. Judge. Crl.A.845/2002. 4 A.K. Basheer, J. Crl.A.No.845 of 2002 Judgment 03/06/2008.