IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.A.No. 412 of 2003() ----------------------- APPELLANT(S): COMPLAINANT: -------------------------- NOUSHAD M., S/O. MEERA PILLAI, MOOLAPARAVILLA PUTHEN VEEDU, KANNAMCODE, ADOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS : ACCUSED AND STATE: --------------------------------- 1. JESSY BABU, W/O. BABU, KOCHUVILLA VEEDU, NELLIMUKAL, MANAKALA P.O., PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJJU.S FOR R1 PUBLIC PROSECUTOR SRI TEK CHAND FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 13/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.A. No. 412 of 2003 -------------------------------------- Dated: JULY 13, 2009 JUDGMENT The challenge in this appeal is to the judgment of the Chief Judicial Magistrate, Pathanamthitta, in C.C.No.136/2001 dated January 25, 2003 finding the 1st respondent/accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting her. 2. The appellant/complainant filed a complaint before the trial court alleging that the 1st respondent/accused borrowed Rs.1,50,000/- from him and to discharge the debt she issued the cheque Ext.P1 dated January 15, 2001 drawn on the account of the 1st respondent in Indian Overseas Bank, Adoor Branch, which, when presented for collection through the account of the appellant/complainant in the Kerala State Co-operative Bank Ltd., Pathanamthitta Branch, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. Ext.P2 is the dishonour memo date 16.2.2001 and Ext.P3 is the CRL.A. No. 412 of 2003 2 intimation. In spite of the notice Ext.P4 which was received by the 1st respondent/accused as evidenced by Ext.P6, postal acknowledgment card, the 1st respondent did not repay the amount and that thus the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the lower court recorded the sworn statement of the appellant/complainant and took cognizance of the case. The 1st respondent on appearance before the lower court pleaded not guilty of the charge under sec.138 of the Negotiable Instruments Act. The appellant/complainant was examined as PW.1 and Exts.P1 to P8 were marked on his side. On the side of the 1st respondent, DW.1 was examined and Ext.D1 was marked. When questioned under sec.313 Cr.P.C., the 1st respondent/accused denied the transaction. The lower court on an appreciation of evidence found the 1st respondent/accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitted her. The appellant/complainant has challenged the said judgment in this appeal. 4. The appellant/complainant filed Crl.M.C.1830 of 2003 for special leave to file an appeal against the acquittal of the 1st CRL.A. No. 412 of 2003 3 respondent. This court by order dated 27.2.2003 granted leave. 5. Sri Sunny Mathew, learned counsel for the appellant/complainant, argued that the lower court went wrong in believing the evidence of DW.1 who is a relative of the 1st respondent/accused. 6. The main question for consideration is whether the finding of the trial court finding the 1st respondent/accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting her can be sustained. 7. For the following reasons I am inclined to agree with the above finding of the lower court. The fact that the cheque Ext.P1 when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the 1st respondent/accused and that in spite of the notice the 1st respondent did not pay the amount allegedly due by the evidence of P.W.1 and Exts.P1 to P8. The case of the 1st respondent/accused is that PW.1 sold his textile shop to Sri Biju George, DW.1, and towards the security of the stock therein he gave two signed blank cheques of the 1st respondent/accused, that misusing those cheques PW.1 filed this complaint and another complaint through one Ahamad. Ext.D1 is the certified CRL.A. No. 412 of 2003 4 copy of the said complaint. The lower court has discussed in detail the evidence of DW.1 and chosen to believe him. I have also gone through his evidence. I do not find any reason to disbelieve his evidence. The fact that PW.1 sold his shop to DW.1 is not challenged in cross-examination of DW.1. The number of Ext.P1 cheque is 3728 and that of the cheque in the case of Ext.D1 is 3729 and both were allegedly issued by the 1st respondent on the same date which probabilises the version of DW.1 that PW.1 sold his textile shop to DW.1 and that as security for the stock therein he handed over two signed blank cheques of the accused and that Ext.P1 is one of those cheques. For all these reasons the lower court is justified in believing the evidence of DW.1 and holding that the 1st respondent/accused has rebutted the presumption available to PW.1 under secs.118 and 139 of the Negotiable Instruments Act and finding that the 1st respondent/accused is not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting her. In the result I find no merit in this appeal and the same is hereby dismissed. P.Q. BARKATH ALI, JUDGE mt/- CRL.A. No. 412 of 2003 5 P.Q. BARKATH ALI, J. ------------------------------ CRL.A. 412 Of 2003 JUDGMENT ------------------------------ 13.7.2009