IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.A.No. 685 of 2003(C) --------------------------------- ST.504/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR ........................................... APPELLANT(S): COMPLAINANT ---------------------------------------------- SANKARANARAYANAN .M., MELEDATH MANA, VELUTHUR P.O., THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): ACCUSED AND STATE --------------------------------------------------------- 1. KANNAN.T.F., THONNAMKAVIL HOUSE, PURANATTUKARA P.O., THRISSUR 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 685 OF 2003 = = = = = = = = = = = = = = = Dated this the 4th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed in S.T.504/00 of the Judicial First Class Magistrate-I, Thrissur. It is the case of the complainant that the accused had borrowed a sum of Rs.18,000/- on 24.1.1999 and towards the discharge of the same had issued a cheque dated 24.7.99 which when presented for encashment returned with the endorsement of insufficiency of funds. Thereafter a statutory notice was issued and the action has been initiated. It is the contention of the accused that he had joined a kuri conducted by a kuri company of which the complainant was the Managing Director and at the time of receiving the amount after bidding the kuri in auction towards security he had given a blank cheque that had been utilized by the complainant to file a case of this nature. PW1 and DW1 were examined. Exts.P1 to P6 and D1 to D3 were marked. Crl.A. 685 OF 2003 -2- 2. PW1 is the complainant. He had deposed before court in the chief examination in line with the complaint. Even according to him the amount was advanced with a stipulation to pay interest at the rate of 12%. According to him the cheque was handed over in July for a sum of Rs.18,000/-. In the cross examination he was asked questions regarding the accused joining the kuri. He had admitted that the complainant was the Managing Director of Sensi Chits and Loans Pvt. Ltd. He also admits that the accused had a kuri of Rs.40,000/- and he had bid it in auction. He also submits that he is the person who had signed the kuri passbook. But he had denied the suggestion that at the time of receiving the amount he had received any blank cheque. He admits that accused is a person who had committed default from 1997 October towards the kuri transaction. Ext.D1 is the kuri passbook. Ext.D2 is a notice issued. So the factum that the accused had joined a kuri of which the complainant was at least a Managing Director at that point of time is established. It has also come out in evidence that even now he is a shareholder of the kuri company. In a case u/s 138 of the Negotiable Instruments Act the burden is always on the Crl.A. 685 OF 2003 -3- complainant and the burden shifts only when the execution is proved and the presumption is drawn. 3. So far as the appreciation of the defence case is concerned suppose they are able to supply materials which probabilises the defence case then it will have its own impact. Now here is a person who had joined a kuri of which the complainant was the Managing Director. Admittedly he had bid the kuri in auction. Even according to the complainant he is a defaulter from October, 1997 onwards. It is too difficult to believe to such a person an amount of Rs.18,000/- is again advanced that too without any proper document. They are not friends. The only evidence available is that he knows the accused. So weighing the materials available I feel the preponderance of probability lies more on the accused rather than on the case of the complainant. Therefore I am not inclined to interfere with the decision of the lower court. Hence the Crl.Appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 685 OF 2003 -4- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 685 OF 2003 = = = = = = = = = = = J U D G M E N T 4th August, 2009