IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Crl.Rev.Pet.No. 3803 of 2009() ------------------------------ CMP.2990/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER/COMPLAINANT: ----------------------- P.BALAKRISHNAN NAMBEESHAN, S/O.PARAMESWARAN NAMBEESHAN, MECHILAD MEETHAL VEEDU, PORUNANOOR AMSOM, KARINGARI DESOM, THARUVANA POST, MANANTHAVADY. BY ADV. SRI.BABU CHERUKARA RESPONDENTS/ACCUSED 1 & 2: ----------------- 1. MANIKUTTAN C., S/O.CHELLAPPAN, NEW BHARATH VASTHRA MELA, NEAR AISWARYA THEATRE, SULTHAN BATHERY. 2. GEETHA MANIKUTTAN, W/O.MANIKUTTAN, NEW BHARATH VASTHRA MELA, NEAR AISWARYA THEATRE, SULTHAN BATHERY. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM. R3 BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rkc V.K. MOHANAN, J. --------------------------------------- Crl. R.P. No.3803 of 2009 --------------------------------------- Dated this the 30th day of January, 2010 O R D E R The complainant in a prosecution for the offence under Sections 420 and 468 read with Section 34 of I.P.C. is the revision petitioner, as he is aggrieved by the order of dismissal of the complaint passed by the court below under Section 203 Cr.P.C. 2. The case of the complainant is that, the first accused borrowed a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) and towards the discharge of the said liability, he issued a cheque dated 17-10-2006 drawn on State Bank of Travancore, Sulthan Batheri Branch. According to the complainant, the first accused issued the cheque as the proprietor of the New Bharath Vasthra Mela, Sulthan Batheri and when the cheque presented for encashment it was dishonored for want of sufficient funds in the account, consequent to which he had caused to issue a lawyer notice in accordance with the provisions of the Negotiable Crl. R.P.No. 3803/2009 2 Instruments Act. As the amount was not paid the complainant has filed STC 2171/2006 before the court below. According to the complainant, during the course of trial of the said case, it was disclosed that the cheque in question was issued from the account of the second accused which was signed by the first accused. According to the complainant, the accused are husband and wife and hence it is alleged that the complainant was cheated and thereby committed forgery of the cheque. 3. Based upon the above complaint, the sworn statement of the complainant was recorded. After perusal of the sworn statement and the documents produced, the Learned Magistrate ordered an investigation under Section 202 Cr.P.C by the Station House Officer Mananthavadi. Accordingly a report was filed on 06-12-2008 in which it is stated that the proprietor of New Bharath Vasthra Mela, Sulthanbatheri is Smt. Geetha Manikkuttan, the second accused, and not the first accused. The report further disclosed that the cheque in question was not signed by the account holder, namely Geetha Manikkuttan as told by the Crl. R.P.No. 3803/2009 3 Manager of SBT. It is also reported that the letter pad in which the agreement was executed was in the possession of one Mr. Suresh Babu who had share in the business of New Bharath Vasthra Mela, Sulthanbatheri and the first accused was not party to the said agreement. The police report further reveals that there was some transactions between the first accused and said Suresh Babu and the shop was closed due to loss and the dispute between the first accused and Suresh Babu was settled between the parties subsequently. Accordingly, towards the liability of the first accused to the said Suresh Babu, he had issued four blank cheques to Suresh Babu out of which one was given to the complainant by the said Suresh Babu for filing the case against accused with the agreement that 10 percent commission would be given to the complainant. 4. The trial court, on appreciation of the available materials including the sworn statement and documents, has found that the version given by the complainant regarding the execution of the cheque cannot be believed. According to the complainant, the cheque in question was Crl. R.P.No. 3803/2009 4 issued from the Verandha of the office of Advocate one Mr. Mohandas who is the Counsel for the complainant in the present case. The trial court has specifically found that the accused are residing at Sulthan Batheri and it is unbelievable that they came from Sulthan Batheri to Mananthavadi to borrow the amount, especially, when there is no materials to show that the complainant and the accused has got a strong relationship so as to part with such a huge amount without any documents and in the absence of any witness for such transaction. The trial court itself paused a question that especially in the absence of sufficient materials on record to show that the complainant has such an intimacy or relationship with the accused to issue such a huge amount, and also doubted as to why the place of transaction chosen as verandha of Adovacate for the transaction. Regarding the actual date of the alleged borrowal of amount, there is no consistent version for the complainant. Even going by the averments of the complainant, the cheque was presented belatedly for encashment for which there is no explanation at all. Crl. R.P.No. 3803/2009 5 5. From the above facts and circumstances and also by perusal of impugned order, it can be seen that after proper application of mind with respect to the facts and circumstances of the case and assigning cogent reason, the learned Magistrate came into a conclusion that the complainant has miserably failed to establish a prima facie case against the accused and accordingly the complaint was dismissed under Section 203 Cr.P.C. According to me no interference of this court is warranted with the above reasoning and finding of the court below. Therefore I am of the view that there is no illegality or impropriety or in the order under challenge. Hence there is no merit in the above Criminal Revision Petition and accordingly, the same is dismissed. V.K. MOHANAN, JUDGE. rkc