IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.A.No. 1166 of 2003() -------------------------------------- CC.126/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANT(S): COMPLAINANTS: --------------------------- V. AZAD RAWTHER, AZAD COTTAGE, THONNALLOOR MURI, PANDALAM VILLAGE. BY ADV. MR.M.NARENDRA KUMAR RESPONDENT(S): ACCUSED: ----------------------- 1. T.P. KESAVAN, KALA BHAVAN, MUDIYOORKONAM MURI, PANDALAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.C.B.SREEKUMAR FOR R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1166 OF 2003 = = = = = = = = = = = = = = = Dated this the 15th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.126/99 of the Judicial First Class Magistrate, Adoor. It was a case u/s 138 of the Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.90,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds and thereafter issued a statutory notice and action has been initiated. The case of the defence appears to be that the marriage of the daughter of the accused was on 19.3.1998 and as gold ornaments has to be purchased for the same and as the complainant was running a jewellery he decided to approach him and after negotiation it was decided that they will transfer the property in the name of the wife to the complainant and it will be re-transferred after the discharge of Crl.A. 1166 OF 2003 -2- the amount due for the purchase and along with the same handed over a signed blank cheque. According to them it is this blank signed cheque that had been utilized for the purpose of this case. 2. The Court below on appreciation of the evidence of PW1 and DW1 and other exhibits agreed with the case of the accused and thereby acquitted him. It is against that decision the present appeal is preferred. 3. The points that arise for determination in the appeal are; (1) Whether the accused had committed an offence u/s 138 of the N.I. Act? (2) Is there anything to interfere with the decision rendered by the Court below. Points 1 and 2: 4. The learned counsel for the appellant very strongly contends before me that the approach of the Court below is totally erroneous and it requires interference. Ext.P1 is the cheque and on a mere perusal of the cheque would reveal that the signature is in one handwriting and the fillings of the cheque is done in different ink. The cheque is dated 9.8.98. In the complaint there is an averment to the effect that on the Crl.A. 1166 OF 2003 -3- said date the amount was borrowed. The complainant is silent about it in the chief examination also. But in the cross examination he would depose that as the accused was in need of money for his daughter's marriage he had advanced an amount on 6.1.98. On the contra the accused would contend that as his daughter's marriage was on 19.3.1998 and on account of his financial scarcity he has to approach the complainant who was running a jewellery. As agreed by the complainant on 18.3.98 13 cents of property in the name of his wife was transferred in favour of the complainant for gold ornaments worth Rs.50,000/- with the understanding that it will be re-transferred to him on discharge of the liability. According to him as additional security the complainant demanded a blank cheque and so he issued Ext.P1 cheque with signature only. 5. DW1 is the person who had deposed that there was such a transaction and that the property as well as the cheque was given only for the purpose of security and when the liability is discharged immediately the cheque as well as the landed property was to be reconveyed. It appears that the matter was referred to the Adalath and in the Adalath there Crl.A. 1166 OF 2003 -4- was an understanding between the parties for retransfer of the property but it has not yielded any result. The evidence of DW1 that accused's daughter's marriage was on 19.3.1998 and for that purpose the property has been transferred in favour of the complainant probabilises the case of the defence set up by the accused. Further if a cheque is written by a person and handed over it will be in the same handwriting of a person. The signature and the handwritings in the cheque are in different ink. The evidence of DW1 totally supports the case of the defence. Ext.D1 also proves the alleged transaction of sale between the wife of the accused and the complainant. So it appears that the case set up by the complainant is false. There is nothing to show that Ext.P1 is issued towards the discharge of the liability. Therefore I do not find any mistake committed by the Court below in finding the accused not guilty u/s 138 of the Negotiable Instruments Act. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 1166 OF 2003 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1166 OF 2003 = = = = = = = = = = = J U D G M E N T 15th June, 2009