IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 CRL.A.No. 1607 of 2003() ------------------------ ST.3929/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT/COMPLAINANT: ------------------------------------------ T.S. NIKHIL KUMAR, S/O. SANKARAN KUTTY THODU HOUSE, P.O. VENKITANGU, THRISSUR DIST. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENTS/ACCUSED & STATE: --------------- ----------------------------------- 1. M. ABDULKHADER, NAINE ICE HOUSE ` P.O. NALLEPPILLY, CHITTUR, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON 03/01/2011 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1607 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of January, 2010 JUDGMENT This appeal is filed by the complainant in S.T.No. 3929 of 1999 on the file of the Judicial First Class Magistrate Court II, Thrissur. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act. 2. Briefly the case of the complainant is as follows. The accused borrowed a sum of Rs.50,000/- from the complainant. For discharging the said liability, he issued a cheque drawn on the State Bank of Travancore, Nattukal, Nellepilly branch. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account of the accused. The appellant sent a registered lawyer notice to the Crl.A. No. 1607 of 2003 2 accused, but it was returned as the accused has not accepted the same. The accused did not repay any amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. On the defence side, Exts. D1 and D2 were marked. The learned Magistrate, on considering the evidence, found that the cheque was not issued for the discharge of a legally enforceable debt and the accused was found not guilty and acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the court below ought to have found that the accused was introduced by one Radhakrishnan, who is a friend of the complainant and as such the complainant had acquaintance with the accused. More over, the accused had admitted the fact that he was a subscriber of two kuries run by the company, in which the complainant was the Manager. The Crl.A. No. 1607 of 2003 3 learned counsel for the appellant submitted that the court below ought to have found that the complainant has sufficient income to secure an amount of Rs.50,000/- 6. The complainant was examined as PW1. He deposed that the accused had borrowed a sum of Rs.50,000/- from him on 2.5.1998. For discharging the said liability, the accused issued Ext.P1 cheque. When Ext.P1 cheque was presented for collection, it was returned for want of funds in the account of the accused. Exts.P2 and P3 are the memos issued by the banks of the accused and the complainant respectively. Statutory notice was issued to the accused, copy of which is Ext.P4. The postal receipt is Ext.P5. The accused has not received the notice and hence it was returned, which is marked as Ext.P6. According to PW1 the accused has not so far paid the amount. 7. When the accused was questioned under Section 313 Cr.P.C., he stated that he was a subscriber to the kuri conducted by the complainant and he had bid the kuri for Rs.7,000/- and gave two blank cheques to the complainant and that Ext.P1 is one of such cheques Crl.A. No. 1607 of 2003 4 given to the complainant as security. PW1 admitted that he is the Manager of Ashirwadam Kuries and the accused was a subscriber to two kuries and that the accused bid one kuri for Rs.7,000/- Exts.D1 and D2 are the kuri pass books issued by the kuri company in which PW1 is the Manager. PW1 admitted that the accused remitted the instalments of Exts. 1 and D2 kuries till 6.10-.1997 and thereafter defaulted the payment of instalments. According to the complainant he gave Rs.50,000/- to the accused as loan on 2.5.1998 without obtaining any document and when he demanded back that amount, the accused gave Ext.P1 cheque. According to PW1 he was getting Rs.2,500/- as monthly salary from the kuri company and he had paddy field of an extent of one acre. 8. As observed by the learned Magistrate, the complainant has no financial capacity to raise Rs.50,000/- More over, as observed by the learned Magistrate, no prudent man will be inclined to pay such a huge amount without getting any document or security to a person like the accused, who was known to be a defaulter. Since the learned Crl.A. No. 1607 of 2003 5 Magistrate has arrived at a right conclusion based on the evidence on record, I find no reason to interfere with the finding of the learned Magistrate that Ext.P1 cheque was not issued for discharge of a legally enforceable debt. 9. Accordingly this appeal is dismissed, as it i without any merit. (M.L. JOSEPH FRANCIS) Judge tm