IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRL.A.No. 727 of 2005() ------------------------------------ CC.1098/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... APPELLANT(S): COMPLAINANT --------------------------------------------- C.D.PAUL S/O. CHELANGARA DEVASSY, KAIPAMANGALAM, KODUNGALLUR. BY ADV. SRI.K.MOHANA KANNAN RESPONDENT(S): ACCUSED ------------------------------------------- DHARMARAJAN, S/O. NARAYANAN, ALOOPADY, CHENTRAPPINNI, KODUNGALLUR. ADV. SRI.K.A.SREEJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J ----------------------------------------- Crl.Appeal No. 727 OF 2005 ---------------------------------------- Dated this the 4th day of August, 2011. JUDGMENT This appeal is filed challenging the order of acquittal passed by Judicial First Class Magistrate, Kodungallur. The complaint was filed by the appellant against the accused alleging commission of offence under Section 138 of Negotiable Instruments Act. The case of the complainant is that he had lent Rs.50,000/- and to discharge that liability Ext.P1 cheque dated 23.3.2002 was executed by the respondent. When Ext.P1 was presented for encashment, it was returned dishonoured due to insufficiency of funds. On receipt of the dishonour memo statutory notice was sent to the accused which was replied by the accused raising untenable contentions as evidenced by Ext.P7. Since the amount was not paid complaint was filed. Crl.Appeal No. 727 OF 2005 2 2. The complainant got himself examined as PW1 and Exts.P1 to P7 were marked. The accused got himself examined as DW1 and Exts.D1 and D2 were marked. The learned Magistrate did not believe the case of the complainant that Ext.P1 was issued by the accused in discharge of a legally enforceable debt or liability and thus the accused was acquitted. 3. The learned counsel for the appellant would submit that there is sufficient evidence to show the execution of Ext.P1 in favour of PW1. It is true that PW1 was conducting money lending business and was also conducting chitty business. It was also admitted by PW1 that the accused was a subscriber in two chitties but the contention raised by the accused that Ext.P1 was only a blank cheque leaf given by him to the complainant only as a security for due payment of the instalments due from him towards chitty transaction was Crl.Appeal No. 727 OF 2005 3 denied by PW1. 4. The specific case advanced by the accused at the very inception, as evidenced by Ext.P7 reply notice is that the accused was a subscriber to two chities, of which one chitty was of Rs.30,000/- for which the monthly instalment payable was Rs.1,000/-, the ticket number of which was stated to be 30. The other chitty of which the ticket number was 31 was one where the monthly instament payable was Rs.750/-. In both chities, the total monthly instalments were 30 each. According to the defence the accused had auctioned both chitties and so for prompt payment of the subsequent instalments the signed blank cheque leaf of the accused was obtained by the complainant and making use of the same this case was filed. Though PW1 has stated that Ext.P1 has nothing to do with the chitty transaction as averred by the accused, the Crl.Appeal No. 727 OF 2005 4 learned Magistrate was not inclined to accept the same. 5. Admittedly, PW1 is conducting money lending business. Of course he says he used to advance loans only on pledging of gold and not advancing personal loans. So the appellant contends that there was no necessity to produce the accounts regarding the money lending business. The contention that no entry was made or expected to be made by PW1 with regard to the money transaction in the account book maintained by him cannot be accepted, especially because he was lending money to so many other persons also. Therefore, non production of the account books regarding the money lending business would assume significance in this case. Though it was admitted that the chitty transactions as stated by the accused in Ext.P7 was closed, the complainant failed to produce accounts relating to the chitty transaction also. Crl.Appeal No. 727 OF 2005 5 6. The learned counsel for the appellant would submit that chitty transaction stated by the accused had already been closed, about three years prior to his examination in court. When exactly the kuri was closed and what actually was the amount due from the accused at the time of the alleged execution of Ext.P1 could have been seen had the accounts pertaining to the chitty transaction been produced. Therefore, the non- production of that account also would run counter to the case advanced by the appellant. 7. The accused relied upon Ext.D1 series, pass books to augment his submission regarding the two transactions. It was admitted by PW1 that from the 24 th instalment onwards the accused had defaulted to pay the amount in one of the chitty transactions, where the monthly instamlemt payable was Rs.1,000/-. Similarly with regard to the other chitty the accused committed Crl.Appeal No. 727 OF 2005 6 default of the instalments from 19 th instalment onwards. In that chitty monthly instalments payable was Rs.750/-. Therefore, according to the defence if at all any amount was due from the accused towards the chitty transaction that could be realised only by producing the accounts relating to the same and showing the actual amount if any due from the accused in a properly instituted proceedings but the complainant has adopted a short cut method making use of the signed blank cheque leaf which was given by DW1 when he had auctioned the two chitties. The case as set up by the defence and sworn to by DW1 was found to be reasonable and probable. At any rate as against the oral testimony of PW1 there is the oral testimony of DW1. The learned Magistrate found that the preponderance of probabilities lie in favour of the case put forward by the accused. The view taken by the learned Magistrate is found to be reasonable and Crl.Appeal No. 727 OF 2005 7 acceptable. To hold otherwise I find no materials. So much so order of acquittal is to be confirmed. In the result, this appeal is dismissed. N.K.BALAKRISHNAN, JUDGE mns