IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 CRL.A.No. 843 of 2003() ----------------------- CC.32/2001 of CHIEF JUDITIAL MAGISTRATE COURT, THALASSERY AGAINST THE JUDGEMENT/ORDER IN CRLP.35/2003 Dated 29/05/2003 .................... APPELLANT(S): COMPLAINANT: ---------------------------------- K.RAGHAVAN S/o.KRISHNAN, 43 YEARS, KIZHAKKEYIL KOLAVALLUR AMSOM, KANNAMKODE DESOM, THUVAKUNNU P.O. BY ADV. SRI.P.P.RAMACHANDRAN “ SRI.SHEJI P.ABRAHAM RESPONDENT(S): ACCUSED ------------------------------ P.PRADEEPAN, 40 YEARS, PUTHIYADATH HOUSE, ERANHOLI, THALASSERY BY ADV. SRI.G.MOHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.A.No. 843 OF 2003 =========================== Dated this the 26th day of July,2010 ORDER Complainant in C.C.32/2009 on the file of Chief Judicial Magistrate, Thalassery is the appellant. Respondent is the accused. Appellant lodged a complaint contending that respondent borrowed Rs.50,000/- on 26.3.2002 and he undertook to repay the same on 26.9.2000 and issued Ext.P1 cheque drawn in his account maintained in Parat Branch of Syndicate Bank on 19.1.2001. Appellant presented the cheque for encashment. Under Ext.P2 it was dishonoured as the account was not in existence. Appellant sent original of Ext.P3 notice demanding the amount covered by the dishonoured cheque. Respondent received it under Ext.P4. He did not pay the amount and thereby committed the Crl.A.843/2003 2 offence under section 138 of Negotiable Instruments Act. Learned Magistrate took cognizance of the offence under section 138 of Negotiable Instruments Act. Respondent pleaded not guilty. Appellant examined himself as PW1. Respondent was examined as DW2. Manager of the bank was examined as DW1. Ext.D1 was also marked. 2. Learned Magistrate on the evidence found that case of the appellant cannot be believed and the case of the respondent is probable. It was found that case of the respondent that he had entrusted signed blank cheques to Merchants Association is probable and the evidence establish that Cheque No.841694 issued in the same account was presented for encashment by the appellant and it was dishonoured and appellant has no explanation for the same and in such circumstances the case of the respondent could only be correct. Learned Magistrate therefore held that respondent did not commit the offence and acquitted him. 3. The case of the appellant is that the Crl.A.843/2003 3 learned Magistrate should have drawn the presumption available under section 139 of Negotiable Instruments Act and found that Ext.P1 cheque was issued towards discharge of the liability as the signature in the cheque is admitted. It is contended that eventhough respondent received notice demanding the amount covered by the dishonoured cheque, he did not send any reply and in such circumstances the subsequent explanation should not have been accepted. Appellant contended that on the evidence learned Magistrate should have convicted the respondent. 4. The allegation in the complaint as well as the evidence of PW1 is that respondent and appellant are known to each other for many years and in March 2000 respondent asked for a loan of Rs.50,000/- and he paid it to the respondent on 26.3.2000. Respondent then agreed to repay the same within six months. Though the complaint does not disclose it, the case of PW1 is that at that time, Ext.P1 cheque was issued as a post dated Crl.A.843/2003 4 cheque. But Ext.P1 cheque was presented only on 19.1.2001. Explanation of PW1 is that it is because the respondent had asked for three months further time. Ext.P1 cheque No. is 841695. Evidence of DW1 the Manager of the Bank establish that the previous cheque namely cheque No.841694 was also presented for encashment in that account by the same appellant and it was also dishonoured on the same ground. The appellant had no case that respondent had issued any other cheque than Ext.P1 cheque. It is in such circumstances learned Magistrate disbelieved the evidence of PW1. As rightly found by the learned Magistrate if respondent had borrowed Rs.50,000/- and issued Ext.P1 cheque for its repayment, appellant could not have been in possession of any other cheque when appellant has no case that any other amount was issued in this or under any other transaction. In such circumstances, learned Magistrate was justified in finding that case of the appellant that Ext.P1 cheque was issued towards repayment of Crl.A.843/2003 5 Rs.50,000/- cannot be believed. On the evidence definitely it is a reasonable view that could be taken. The fact that appellant had presented another cheque, that too cheque bearing the number just previous to Ext.P1 cheque, probablise the case of the respondent that the cheques were issued as a blank cheque, as admitted by appellant did not take steps on the other dishonoured cheques. Though presumption under section 139 of Negotiable Instruments Act is available, the said presumption which is rebuttable could be drawn only if execution of the cheque is either admitted or proved. Admission of the signature in a blank cheque is not admission of execution of cheque. Apart from stating that respondent had given Ext.P1 cheque, evidence of PW1 does not establish execution of Ext.P1 cheque. In such circumstances, the presumption under section 139 of N.I Act also cannot be drawn. There is no other evidence to prove that appellant had borrowed any amount, which was repaid by issuing a cheque. In such Crl.A.843/2003 6 circumstances, I find no reason to interfere with the order of acquittal. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006