IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRL.A.No. 256 of 2003() -------------------------------- CC.164/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT(S): COMPLAINANT: -------------------------- K. PRADEEPAN, S/O. KUMARAN, KOKADAN VEEDU, VILAYAMCODE, P.O. PILATHARA, KANNUR DISTRICT. BY ADV.MR.M.V.AMARESAN RESPONDENT(S): ACCUSED: ----------------------- 1. K.C. JOSE, AGED 51 YEARS, S/O. CHENGAM, TALIPARAMBA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.MR.M.P.MADHAVANKUTTY FOR R1 MR.K.K.SUNIL KUMAR (IDUKKI) FOR R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 256 OF 2003 = = = = = = = = = = = = = = = Dated this the 7th day of July, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate, Payyannur in C.C.164/99. It is the case of the complainant that the accused had borrowed a sum of Rs.70,000/- during the first week of September, 1998 and towards the discharge of the liability had issued a cheque dated 15.10.98 which when presented for encashment returned as payment was stopped by the drawer. Thereafter a lawyer notice was issued and as no payment was made action is initiated u/s 138 of the Negotiable Instruments Act. The contention of the accused appears to be that he had no transaction with the complainant. The accused had purchased a car from one Balan. There was some liability towards the financial company and therefore the R.C.Book of the car was not given to the accused. As the R.C.Book was not obtained the accused has not paid the remaining Crl.A. 256 OF 2003 -2- instalment. On 6.10.98 he was called to Taliparamba by the above said Balan and others including the complainant and obtained a blank singed cheque and some signed stamp papers by force and misusing the said cheques the complaint has been initiated. 2. In the trial court Exts.P1 to P5 and D1 to D5 were marked. PW1 and DWs.1 to 3 were examined. In order to succeed the prosecution has to prove that there was a money transaction between the complainant and the accused in September, 1998 and that it was towards the discharge of that liability the cheque had been issued. The complainant's evidence is in line with the averments in the complaint in the chief-examination. In the cross-examination he had deposed before Court that the accused came to the house of the complainant and handed over the cheque. He had very specifically stated that there was no car transaction between the complainant and the accused with respect to KL-10 2424. He was asked the question whether he had issued notice with respect to the said fact he pretended ignorance and lack of Crl.A. 256 OF 2003 -3- memory but when he was confronted with the notice dated 27.11.98 he had admitted the same. He had pleaded that he does not know whether the accused resides in Thiruvananthapuram. He pleads ignorance about how he got the address of the accused. He would submit that he had some transaction with respect to the vehicle previously with the accused. He pretended also ignorance about the complaint filed by the accused before the police against him and others. He would also admit that towards the end of December, he had gone to the house of the accused. He was asked the question when the accused reached Taliparamba by 6.10.98 whether he was restrained and was forced to issue blank cheque and papers to which the answer was in the negative. His contention is to the effect that the cheque was given on 15.10.98. Then he was asked about the petition filed before the police, the letter issued to the Bank with a copy to him as well as the letter addressed to the RTO not to effect the transfer of the Ambassador car. So according to the complainant there was no instance whatsoever as spoken to Crl.A. 256 OF 2003 -4- by the accused. It is in this backdrop we have to find out what is Exts.D1 to D5. Ext.D1 is the notice addressed by the Advocate of the complainant to the accused alleging a transaction with respect to the sale of a vehicle bearing Reg.No. KL-10 2424. It has to be remembered till confronted he did not state anything about the transaction and he never wanted to put the true things before the Court and became helpless when Ext.D1 was put to him. Ext.D4 is a letter addressed by the accused to the Branch Manager of Syndicate Bank, Taliparamba on 12.10.98 to the effect that the cheque leaves had been forcibly obtained by the complainant Babu and others and if such cheques are presented it should not be encashed. The date is very relevant in this case. Ext.D5 is a letter addressed by the accused to the RTO, Taliparamba wherein he had made a request not to effect any transfer with respect to the vehicle KL-10 2424. Ext.D2 is the register of petitions maintained by police which would indicate that the accused had filed a complaint on 10.10.98 with respect to the taking of blank signed cheques and blank signed stamp Crl.A. 256 OF 2003 -5- papers. So on 10.12.98 and 12.12.98 etc. the accused in this case had addressed to the authorities with respect to the fact that cheque leaves had been forcibly obtained from him and so it should not be encashed and further that the vehicle should not be transferred. Now, it has to be seen that Ext.P1 cheque is dated 15.10.98 and it is presented for encashment. So it has to be held that even before the alleged issuance of the cheque the accused had approached the proper authorities and had complained about the loss of cheque leaves by way of forceful taking by the complainant and his company. The facts proved by the accused makes the case of the complainant unbelievable. So it has also to be mentioned that the conduct of the complainant to deny totally any vehicle transaction also has to be borne in mind in analyzing this evidence. Therefore when the evidence tendered by PW1 and DWs.1 to 3 and the documentary evidence are weighed against each other the preponderance of probability is more in favour of the accused and the story put up by PW1 appears to be clearly artificial and his uncorroborated evidence does not inspire any Crl.A. 256 OF 2003 -6- confidence in the Court to accept it to find out the execution of the cheque and towards the discharge of the liability. I fully agree with the learned Magistrate when he held that the complainant has failed to prove the transaction as alleged and so the acquittal was proper and therefore the appeal is liable to be dismissed and I do so. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 256 OF 2003 -7- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 256 OF 2003 = = = = = = = = = = = J U D G M E N T 7th July, 2009