IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 CRL.A.No. 89 of 2000() ---------------------- ST.805/1998 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT: ----------------- THOTTATHIL SHANMUGHAN, S/O.KRISHNAN, KOTHAMKUNNU PARAMBA, ERMBUZHI AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: ---------------------- 1. E.K. ABDUL NAZAR, S/O.HAMSA, NAS ENTERPRISES, MAIN ROAD, SULTHAN BATHERY, WYNAD DISTRICT. 2. STATE OF KERALA REPRESENTED B Y THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 31. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 89 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2008. Judgment This appeal is directed against the judgment of acquittal in a prosecution under Section 138 of the Negotiable Instruments Act. Though the appellant had taken out notice to the accused on several occasions, he has not been served so far. Since this appeal is of the year 2000, I have heard learned counsel for the complainant and perused the entire materials of the case carefully. 2. It is contended by the appellant/complainant that the court below was not justified in holding that Ext.P1 cheque was not supported by consideration and that the complainant had not succeeded in establishing that there was a legally enforceable debt or liability to be discharged by the accused. 3. The case of the complainant was that the accused had issued Ext.P1 cheque for a sum of Rs.16,000/- being the balance amount payable in connection with a vehicle transaction. The complainant claimed that he was a vehicle broker and had sold a Maruti car bearing registration No. KL6 - 7448 to the accused for a total consideration of Rs.66,000/- . The complainant contended that the accused had paid a sum of Rs.50,000/- in cash and it was for the balance amount of Rs.16,000/- that he had issued Ext. P1 cheque dated November 15, 1997 at Malappuram drawn on a Bank at Sulthan Bathery in Wayanad District, in which the accused had been maintaining the account. But when the cheque was presented Crl.A.89/2000 2 for encashment it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued to the accused he had failed to discharge the liability. Hence the complaint. 4. While considering the oral testimony of Pw.1 (the complainant), it was noticed by the learned Magistrate that the complainant was not even aware who the owner of the vehicle was. It had also come out in evidence that no agreement was executed between the parties in connection with the above transaction. He further admitted that he had got acquaintance with the accused only by sight. Pw.1 admitted that he had not handed over the sale letter nor had he put his signature in any such document. Curiously the complainant had further admitted that he did not know the name of the accused. But he denied the suggestion that he had had a vehicle transaction with the father of the accused. 5. The learned Magistrate took the view that the evidence adduced on the side of the defence through Dws.1 and 2 appeared to be more credit worthy and believable. The specific case of the accused was that Dw.1, his father, had entered into Ext.D1 agreement with one Saidali in connection with a vehicle transaction. A blank cheque signed by the accused was handed over by his father (Dw.1) to Saidali in connection with that transaction. According to the accused the said cheque was misused by the complainant for launching the present prosecution against him. 6. Ms. Sheeba, learned counsel for the petitioner, contends that the accused had not discharged the burden cast upon him, especially since he had no case that he had not signed Ext.P1 cheque. She invites Crl.A.89/2000 3 my attention to the provisions contained in section 118 and 139 of the Act and contends that the case of the complainant was entirely credit worthy, whereas the defence set up by the accused was highly improbable. The accused had not explained as to how Ext.P1 cheque happened to come in to possession of the complainant. According to the learned counsel, for that sole reason the defence version ought to have been repelled. 7. But it is pertinent to note that the initial burden to prove that the negotiable instrument is supported by consideration is undoubtedly on the drawee. It must be established that there existed a legally enforceable debt and that the instrument was supported by consideration. The learned Magistrate on a careful evaluation of the oral and documentary evidence on either side took the view that the defence version was more probable and believable. 8. Having heard learned counsel for the complainant and having perused the entire materials available on record I find it difficult to interfere with the judgment of acquittal passed by the court below. In my view, the learned Magistrate was justified in holding that the complainant had not succeeded in establishing his case that Ext.P1 cheque was issued in discharge of a legally dischargeable debt or liability. There is no merit in the appeal. It is accordingly dismissed. A.K. Basheer Judge. an.