IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRL.A.No. 157 of 2000 ----------------------- CC.182/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT/COMPLAINTANT: ------------------------------- N.R. VENUGOPAL @ VENU, S/O. RAMAN NAIR, KIZHAKKAPPATTU HOUSE, P.O. AKKIKAVU. BY ADV. SRI.M.V.BOSE RESPONDENTS/ACCUSED AND STATE : ------------------------------------------- 1. M.K. MURALEEDHARAN, S/O. KUMARAN, MUTHIRAPARAMBATH HOUSE, CHERUTHURUTHY, P.O. PERUMTHURUTHY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.M.K.ABOOBACKER R2 BY PUBLIC PROSECUTOR, SRI. C.M. KAMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 157 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July 2008 JUDGMENT This appeal is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. He impugns the order of acquittal passed by the trial court. The learned Magistrate, while acquitting respondent No.1/accused, held that the appellant had failed to prove that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt or liability. 2. The case of the complainant in brief was that the accused had borrowed a sum of Rs.36,500/- from him on March 28, 1995, promising to repay it very soon. But the accused repaid only Rs.4,000/-in two instalments. When the complainant demanded for payment of the balance sum, the accused refused to do so. Therefore the complainant had lodged Ext.P7 complaint before the Circle Inspector of Police, Kunnamkulam requesting for his intervention and appropriate action in the matter. Ultimately, the accused agreed to pay off the liability and issued Ext.P1 cheque dated July 1, 1996 for Rs.32,000/-. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of Crl.A : 157/2000 -:2:- funds in the account of the accused. The liability was not discharged by the accused in spite of issuance of statutory demand notice. 3. The complainant was examined in the case as PW1 and Exts.P1 to P7 were marked on his side. There was no oral or documentary on the side of the accused. 4. The defence set up by the accused, as discernible from the cross examination of the complainant and answers given by him when questioned under Section 313 of the Cr.P.C, appears to be a total denial of any liability. Accused contended that Ext.P1 cheque was obtained by the complainant by coercion and threat exerted by the police. 5. The complainant himself admitted that he had sought intervention of the police. Ext.P7 produced by the complainant was the copy of the complaint preferred by him before the Circle Inspector of police, Kunnamkulam. In cross examination, PW1 admitted unambiguously that the Assistant Sub Inspector of Police had mediated and it was as a result of such mediation that the accused had agreed to pay Rs.32,000/-. But according to the complainant, accused had handed over Ext.P1 cheque dated July 18, 1996 at his Crl.A : 157/2000 -:3:- office on July 1, 1996. No corroborative evidence was adduced by the complainant in this regard. There was only the ipsi dixit of the complainant on this aspect. PW1 had also admitted that he had not obtained any receipt from the accused at the time when the money was lent by him to the accused. According to the complainant he was working in the office of a Tourist Bus Operator. His specific case was that the accused was a stage carriage operator. He had borrowed money from the complainant stating that he wanted to remit the monthly instalment to the financier towards the loan availed of by him for the bus. The complainant had further alleged that when he asked for return of money from the accused, his response was that he could recover it whichever way he wanted. The said response clearly indicates that there was dispute with regard to the alleged debt or liability. This was probabilised by the fact that the complainant had approached the police for recovery of the alleged debt. The police had admittedly intervened. Therefore the learned Magistrate took the view that the case of the accused that Ext.P1 cheque was obtained from him by the police exerting pressure and coercion was probable. Having carefully perused the deposition of Crl.A : 157/2000 -:4:- PW1 and Ext.P7 and other relevant materials in this regard, I do not find any reason to take a different view, especially, since this is an appeal against an order of acquittal. It is trite that interference with an order of acquittal cannot be done as a matter of course, even if a second view is possible. The Court must be circumspect in adopting the other view, unless there are compelling circumstances and clinging materials in support of the other possible alternate view. 6. There was yet another reason which persuaded the Magistrate to acquit the accused. It was admitted by the complainant himself that Ext.P1 cheque was issued in the name of Mr.Venu. The complainant stated that he had corrected the name in the cheque as ‘Venugopal’ as insisted by the bank officials, when it was presented for encashment since the account was opened by the accused in the name of Venugopal. The learned Magistrate relying on a decision of their Lordship of Supreme Court in Anirudhan v. Thomco’s Bank [AIR 1963 SC 746] held that the alteration, which was admittedly made by a complainant being a unilateral act, it would not be binding on the accused and therefore Section 87 of the Act would be attracted. Crl.A : 157/2000 -:5:- 7. It may be noticed that the case of the complainant was that he had made the alteration as insisted by the bank officials without the knowledge or consent of the accused. Therefore going by the provisions contained in Section 87 of the Act, the instrument was rendered void as against the accused, who was a party to the said instrument. It is true that the complainant had contended that he had approached the accused requesting him to correct his name in the cheque, but since the accused did not concede to the request, he had himself carried out the alteration. This explanation will not save the complainant from the impact of the provisions contained in Section 87 of the Act. Having regard to the entire facts and circumstances, I am satisfied that the view taken by the learned Magistrate was quite reasonable and justifiable. Therefore the finding entered by the learned Magistrate does not call for interference. The appeal therefore fails. It is accordingly dismissed. (A.K.BASHEER, JUDGE) ttb Crl.A : 157/2000 -:6:-