IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 CRL.A.No. 498 of 2003 ------------------------------------- CRA.198/1999 of ADDL. SESSIONS COURT, ALAPPUZHA ST.4324/1994 of JFCM-I, ALAPPUZHA .................... APPELLANT/1ST RESPONDENT/COMPLAINANT: B.CHANDRA BABU, SOPANAM, MUNICIPAL OFFICE WARD, ALAPPUZHA. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS/APPELLANT & R2/ACCUSED & STATE: 1. VENUGOPAL,MADHAVA MANDIRAM, HOUSE NO.XXX/66, KRISHNAPURAM, KAYAMKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.RAJASEKHARAN PILLAI FOR R1 SRI.M.J.JOHN FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.498 of 2003 -------------------------- JUDGMENT Complainant in S.T.No.4324/1994 on the file of Judicial First Class Magistrate's Court-I, Alappuzha filed this appeal challenging the order of acquittal of the first respondent for the offence under Section 138 of Negotiable Instruments Act passed by the learned Additional Sessions Judge in Crl.A.No.198/1999. Appellant lodged the complaint, which was taken cognizance by the learned Magistrate, alleging that he is having a shop by name Paint Wares in Alappuzha. First respondent is his friend. On 30.4.1994, first respondent came to his shop and asked for an amount of Rs.30,000/- and promised to give a cheque for that amount and as and when the cheque is presented before the Bank, same could be encahsed. Believing the representation, appellant paid Rs.30,000/- on the same day and first respondent issued Exhibit P1 CRA 498/03 2 cheque dated 30.7.1994, a post dated cheque drawn on his account maintained in Kayamkulam Branch of Syndicate Bank. When the cheque was presented for encashment on 30.7.1994, it was dishonoured for want of sufficient funds. Appellant sent a notice by registered post demanding the amount covered by the dishonoured cheque. First respondent received the same. But, did not pay the amount and did not sent any reply. Thereby, first respondent committed an offence under Section 138 of Negotiable Instruments Act. 2. First respondent pleaded not guilty. Appellant was examined as PW1 and Manager of the Bank as PW2. Exhibits P1 to P7 were also marked. On the side of the first respondent, Exhibit D1, a letter sent by the appellant, was confronted and marked. 3. Learned Magistrate, on the evidence, found the first respondent guilty and convicted and sentenced him for the offence under Section 138 of CRA 498/03 3 Negotiable Instruments Act. First respondent challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.No.198/1999. Learned Additional Sessions Judge, on re- appreciation of evidence, set aside the conviction and sentence and acquitted the first respondent. This appeal is filed challenging the order of acquittal. 4. Learned counsel appearing for the appellant and first respondent were heard. 5. Argument of the learned counsel appearing for the appellant is that learned Additional Sessions Judge set aside the conviction relying on Exhibit D1 produced by the first respondent without proper appreciation of evidence. It was argued that the date of Exhibit D1 is corrected and in re- examination, PW1 deposed that he did not make the correction and Exhibit D1 was produced by the first respondent and it was in his possession and in such circumstances, it is for him to explain as to how CRA 498/03 4 the correction was made and therefore, when there is no explanation, Exhibit D1 should not have been relied on. Learned counsel also argued that the discrepancy of the case set up by the first respondent, when he was questioned under Section 313 of Code of Criminal Procedure and the case now accepted by the learned Additional Sessions Judge, were not properly appreciated. It was also pointed out that as per Exhibit D1, Rs.25,000/- was payable and according to the first respondent, as disclosed by him at the time of his examination under Section 313 of Code of Criminal Procedure, only Rs.12,500/- was borrowed and in the light of the said discrepancy, it can only be found that Exhibit D1 has nothing to do with the transaction involved in this case. Learned counsel also argued that the fact that first respondent did not send any reply establishes that the transaction was as disclosed by PW1 and in such circumstances, the order of acquittal is unsustainable. CRA 498/03 5 6. The allegation in the complaint is that first respondent, a friend of the appellant, asked for a loan of Rs.30,000/- on 30.4.1994 promising that he would issue a cheque which could be encashed at any time on presentation and believing the representation, appellant paid Rs.30,000/- and Exhibit P1 cheque was issued as a post dated cheque by the first respondent. According to the first respondent, there was no such transaction and he did not borrow any amount from the appellant. According to the first respondent, he used to purchase goods from the shop of the appellant and used to pay the amount subsequently and when first respondent defaulted to pay the amount, Exhibit D1 was sent demanding the amount. True, the amount, which, according to the first respondent, is payable, is different from the amount shown in Exhibit D1. I cannot agree with the submission of the learned counsel that for that reason evidence of PW1 is to be accepted. CRA 498/03 6 7. When the very transaction is disputed by the first respondent, it is necessary to find out whether there was any liability to be discharged under Exhibit P1 cheque. The transaction is an oral one. Hence, the transaction could only be proved by oral evidence. The question is whether oral evidence of PW1 inspires confidence. As rightly found by the learned Additional Sessions Judge, if oral evidence of PW1 is to be believed, except this transaction, he had no other transaction with the first respondent. Exhibit D1 was confronted to PW1 in cross-examination. When Exhibit D1 was confronted, appellant unambiguously admitted that it was a letter sent by him to the first respondent, though he originally termed it as quotation. According to the first respondent, the amount is payable for purchase of goods from the shop of PW1. PW1 admitted that, that letter was sent on 9.2.1994. PW1 was asked whether Exhibit D1 was sent demanding the amount payable on account of CRA 498/03 7 the purchase of goods from the shop. At more than one place, PW1 asserted that it was issued to the first respondent to give the goods on payment of the amount demanded. There was no case at that time that Exhibit D1 was sent to the first respondent demanding an amount payable by the first respondent to a blade company, which was granted to him at the instance of PW1. Later, PW1 was re-called and re- examined. A new case was projected at that time. As per the new case, appellant introduced first respondent to a blade company and he borrowed Rs.40,000/- from the blade company and failed to pay that amount and therefore, the blade company started pressurising the appellant and hence appellant sent Exhibit D1 to the first respondent. As rightly found by the learned Additional Sessions Judge, further cross-examination of PW1 reveals that the said case is absolutely false. If PW1 had introduced first respondent to a blade company and thereafter a loan was obtained by the first CRA 498/03 8 respondent from that blade company and the blade company people pressurised the appellant, which compelled him to send Exhibit D1, he would at least be in a position to name the blade company. Though he stated that he can name the person, he is not aware where that blade company is. According to PW1, he contacted the blade company people over phone. If that be so, it cannot be imagined that appellant would send Exhibit D1 to the first respondent to pay the amount payable to the blade company. On a proper appreciation of evidence, it can only be found that Exhibit D1 was not in respect of the alleged transaction deposed by PW1 in re-examination and it could only be in respect of the transaction where under appellant is entitled to get money from the first respondent towards purchase of goods from his shop. If that be so, as rightly found by the learned Additional Sessions Judge, Exhibit P1 cheque could not have been issued for repayment of Rs.30,000/- borrowed CRA 498/03 9 by the first respondent. Apart from the interested version of PW1, there is no evidence to prove that Rs.30,000/- was borrowed by the first respondent. I find the evidence of PW1 untrustworthy and unreliable. In such circumstances, I find no reason to interfere with the order of acquittal passed by the Additional Sessions Judge in Crl.A.No.198/999. Appeal fails and it is dismissed. 21st July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 498/03 10 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.498 of 2003 -------------------------- JUDGMENT 21st July, 2010