IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 CRL.A.No. 701 of 2000 ---------------------------------- CC.817/1993 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT: /COMPLAINANT: ----------------- P.SURENDRAN, S/O.AYYAPPAN PILLAI, AGED 40, SARASWATHY NIVAS, R.C.ROAD, KARUVELIPADY, KOCHI-5. BY ADV. SRI.S.RAJKUMAR SRI.M.B.VIMAL RAJ RESPONDENTS: ACCUSED & STATE: ----------------------- 1. L.T.VARGHEESE, S/O.THOMAS, C.C.NO.16/527, KARUVELIPADY, KOCHI - 5. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 701 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2008 JUDGMENT The complainant in a prosecution under Section 138 of the Negotiable Instrument Act has preferred this appeal impugning the order of acquittal passed by the trial court. In the order of acquittal the learned Magistrate found that the appellant/complainant had failed to prove the charge against the respondent/accused. 2. The case of the complainant was that the accused had issued Ext.P1 cheque for Rs.35,000/- in discharge of a debt but when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory demand notice did not evoke any response from the accused, nor did he discharge the liability. Hence the complaint. 3. The complainant was examined as Pw.1 and the bank official was examined as Pw.2. Exts.P1 to P5 were marked on the side of the complainant. The accused got himself examined as Dw.1, though no document was produced on his side. 4. The defence set up by the accused was that Ext.P1 cheque was not supported by any consideration as alleged by the complainant. According to the accused, he had borrowed only Rs.10,000/- from the complainant on the strength of a promissory note. At that time he had handed over a signed blank cheque to the complainant as security for return of the money. He had paid off the liability thereafter but the Crl.A.701/2000 2 complainant insisted for huge interest and for that reason he did not return the blank cheque. The accused contended that the said blank cheque was misused by the complainant for launching the prosecution. 5. It may be noticed that the specific case of the complainant in the complaint was that the accused had borrowed money from him after executing a promissory note and that Ext.P1 cheque for a sum of Rs.35,000/- was issued by the accused towards part payment. When the complainant was examined as Pw.1, he had admitted in the course of his cross-examination that he had lost the promissory note somewhere . Thus the promissory note never saw the light of the day. 6. Further, the complainant had admitted that all the entries in the cheque were in his own handwriting. It is true that the accused had put the signature in Ext.P1. But according to the accused, the complainant had misused the blank cheque handed over by him at the time of borrowal of Rs.10,000/-, which of course was on the strength of a promissory note. 7. The learned Magistrate had noticed that the complainant is a practising lawyer and the accused is a layman. The omission on the part of the complainant to produce the promissory note weighed with the learned Magistrate, especially in view of the specific case of the accused that he had borrowed only Rs.10,000/- and executed a promissory note in acknowledgement of the said transaction. The learned Magistrate took the view that in the backdrop of the above specific contention raised by the accused, the non production of the promissory note by the complainant cannot be brushed aside lightly. Crl.A.701/2000 3 8. As mentioned earlier, the specific case of the complainant was that the accused had borrowed some money from him after executing a promissory note. Significantly, the complainant did not reveal what was the exact amount borrowed by the accused. In that view of the matter the finding entered by the learned Magistrate cannot be faulted. 9. I have carefully perused the deposition of Pws.1 and 2 and the averments in the complaint. The scope of interference in an appeal against acquittal is undoubtedly very narrow. The reasoning of the learned Magistrate cannot be termed as totally illegal, arbitrary or perverse. In that view of the matter, I do not find any reason to interfere with the order of acquittal passed by the learned Magistrate. The appeal fails and it is accordingly dismissed. A.K. Basheer Judge. an.