IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 CRL.A.No. 1965 of 2003() ----------------------------------- CC.77/2000 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... APPELLANT(S): COMPLAINANT --------------------------------------------- CHANDRIKA, D/O. BHAIMI, PALAKKATTU BINDU BHAVANAM, THEKKU KOCHU MURI, KRISHNAPURAM VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENT(S): ACCUSED AND STATE --------------------------------------------------------- 1. SUSEELA, THANDANERATHU VEEDU, PRAYAR VADKKUM MURI, PUTHUPALLI VILLAGE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA. R1 BY ADV. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR. R2 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1965 of 2003 ------------------------------- Dated this the 18th day of August 2011 J U D G M E N T The complainant in a case filed against the first respondent alleging offence under Section 138 of the N.I.Act is the appellant. The case of the complainant is that the accused had borrowed from her a sum of Rs.2 lakhs on 20.10.1998 and to discharge that debt the accused issued Ext.P1 cheque on 1.11.1999 and when it was presented for encashment, it was dishonoured due to insufficiency of fund and thereupon statutory notice was sent to the accused. A reply was sent by the accused raising false contentions. The cheque amount was not paid. Hence the complaint was filed. 2. The complainant got herself examined as P.W.1 and Exts.P1 to P4 were marked. The accused got herself examined as D.W.1 and Exts.D1 to D4 were marked. -: 2 :- Exts.X1 and X2 were also marked. The learned Magistrate found that the complainant could not prove the transaction and that she was having that much amount with her to lend Rs.2 lakhs as stated by her. The evidence given by D.W.1 was also considered by the learned Magistrate to hold that the complainant could not succeed in proving that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt or liability. On that reason the accused was acquitted. 3. The learned counsel for the complainant would submit that even in the reply notice and also in the evidence given by the accused as D.W.1, it was stated by her that she had issued a cheque, though, according to her, it was issued to one Samuel Isac, but that Samuel Isac was not examined at all. In such circumstances, according to the learned counsel, the court should have drawn the presumption that the accused issued the cheque in discharge of a legally enforceable debt or liability. It is further argued that the evidence given by P.W.1 is to the effect that the amount was -: 3 :- lent by her to the accused in order to meet the expenses of the marriage of the accused's daughter. Regarding the source of income, it was stated by P.W.1 that 30 sovereigns of gold ornaments belonging to her daughter were sold and her son-in-law who was working abroad had also sent money and making use of the same, a sum of Rs.2 lakhs was lent by P.W.1 to D.W.1. This, according to the learned counsel for the complainant, was sufficient to hold that P.W.1 was having sufficient income to lend that much money. It is further argued that even according to the accused, in order to meet the marriage expenses of her daughter, she had borrowed some money. Though according to her, it was from Samuel Isac and not from P.W.1. Therefore, according to the learned counsel, the evidence would show that the accused had borrowed money and it was to discharge that debt/liability Ext.P1 cheque was issued by her. 4. The learned counsel for the accused would submit that the evidence given by P.W.1 cannot infuse confidence -: 4 :- in the mind of the court since the evidence as to how the money was raised for lending it to the accused is totally against the facts of the case. It is pointed out that Ext.D4 marriage certificate would show that the marriage of the daughter of the accused was solemnized on 15.12.1997 whereas the case of P.W.1 is that it was for that marriage she lent money to the accused. The alleged borrowal according to her (P.W.1) was on 20.10.1998. The learned counsel for the accused would further submit that going by the evidence of P.W.1 she had sold away her daughter's gold ornaments worth 30 sovereigns about five months prior to the request for loan was made by D.W.1. No document whatsoever was produced by P.W.1 to show that her daughter's gold ornaments were sold. That apart, according to the accused, it is quite unlikely that the gold ornaments would be sold and the money would be kept in hand, namely, in her own house for about 5/6 months only to lend money to the accused. The learned counsel submits that since the dates of lending and the marriage of the -: 5 :- daughter of the accused do not reconcile with each other, that also is one of the circumstances to hold that the case of the complainant is not true. It is further argued that even though a huge amount of Rs.2 lakhs (the alleged lending was in the year 1998) was handed over to the accused, no document was obtained by the complainant at the time of lending nor has the complainant any case that there was anybody else who witnessed the handing over of that huge amount of Rs.2 lakhs. It is further argued that if such a huge amount was lent, certainly some document would have been obtained evidencing the lending. But even according to the complainant, the cheque was issued only on 1.11.1999, more than one year after the alleged lending. That also, according to the accused, would run counter to the normal human contact. It is also argued that the earlier version given by the complainant that the money was raised by sale of gold ornaments also cannot inspire confidence since the sale of gold ornaments, even according to P.W.1 was about five months prior to the request for loan. -: 6 :- 5. It is further contended by the accused that even in Ext.D1 reply notice, it was specifically stated by the accused that what was handed over by her to Samuel Isac was only a signed blank cheque leaf; to mean that it was only signed without writing the payees' name, the amount and the date. Therefore, the contention raised by the complainant that there was due execution of Ext.P1 cannot be sustained at all. It is true that when the cheque leaf was of the account of the accused, the accused must certainly explain how the cheque leaf happened to reach the complainant. But the accused would contend that the signed cheque leaf was given to Samuel Isac from whom she had obtained Rs.20,000/- for meeting the expenses of her daughter's marriage. It is true that non-examination of Samuel Isac may be one of the circumstances which can be used by the complainant against the accused. But that by itself cannot be a substitute for the proof of due execution of the cheque by the accused and handing over of the same to the complainant, learned counsel for the accused submits. -: 7 :- 6. It could be seen that what was produced by the complainant before the court was only an unattested photocopy of the cheque which was purported to be of the date 1.11.1999 and purported to have been signed by the accused. It is true the counsel who appearing for the complainant put no question regarding Ext.P1. The learned counsel for the appellant would submit that the original cheque was produced in the suit filed by the complainant against the accused for recovering of the amount covered by the cheque. It is also submitted that the suit was decreed in favour of the complainant. Though these facts are not in evidence, the submission made by the learned counsel is recorded. The fact that the suit filed by the complainant was decreed by the civil court can also be taken as a circumstance not to order remand of this case to the trial court after several years. 7. Be that as it may, the evidence given by PW1 regarding lending of money and the transaction in respect of which Ext.P1 was alleged to have been executed could -: 8 :- not infuse confidence in the mind of the court. As such, the learned Magistrate was not inclined to hold that Ext.P1 was executed by the accused in discharge of a legally enforceable debt/liability. As such I find no reason to interfere with the findings so entered by the learned Magistrate. But it is made clear that this judgment will not in any way affect the judgment of the civil court. The acquittal is thus confirmed. This Crl.A. is dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt