Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE7H DAY OF OCTOBER201315TH ASWINA, 1935 CRL.A.No. 48 of 2007 (A) ------------------------- Crl.L.P. 687/2006 of HIGH COURT OF KERALA DATED1512-2006 AGAINST THE ORDER
/JUDGMENT
IN ST5442006 of J.M.F.C.-VII, THIRUVANANTHAPURAM DATED2009-2006 APPELLANT/COMPLAINANT: --------------------------- C.CHANDRAN, DAKSHINA, HOUSE No.72, PARAKODE LANE, NALANCHIRA P.O. THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS/ACCUSED AND STATE: --------------------------------- 1. SMT.SMITH BINO, W/O. BINO BEN, FLAT No.335, F BLOCK, SWATHI NAGAR, WEST FORT, THIRUVANANTHAPURAM.
2. STATE OF KERALA . REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.S.KALKURA R1 BY ADV. SRI.M.S.KALESH R1 BY ADV. SRI.HARISH GOPINATH R1 BY ADV. SRI.V.VINAY MENON R1 BY ADV. SRI.KIRAN SANKAR R2 BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0710-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
----------------------------------- Crl.A.No.48 of 2007 ------------------------------------ Dated this the 07th day of October, 2013 JUDGMENT
Challenging the judgment dated 20/9/2006 of the court of Judicial First Class Magistrate Court-VII, Thiruvananthapuram in S.T.No.544 of 2006, the complainant therein preferred the present appeal, as the accused therein, who faced prosecution for the offence punishable under Section 138 of the N.I. Act is acquitted.
2. The case of the appellant/complainant is that the accused borrowed an amount of `95,000/- from the complainant on 15/10/2004 and on demanding back the above amount, the accused issued cheque dated 20/01/2005, for the said amount, which, when presented for encashment, was dishonoured, as there was no sufficient fund in the account maintained by the accused and no amount was paid even though the accused received the statutory notice at the instance of the complainant and therefore the accused has committed the offence punishable under Section 138 of the Crl.A.No.48 of 2007 :-2-: N.I. Act. During the trial of the case the complainant has filed an affidavit in lieu of chief-examination and himself was examined as PW.1 and produced Exts.P1 to P5. From the side of the defence Exts.D1 to D5 were produced. The trial court after having considered the entire evidence and materials on record found that there is no independent evidence or supporting evidence to show that the accused issued Ext.P1 cheque in discharge of whole or any part of any legally enforceable debt. On the basis of the above findings the accused is found not guilty of the offence under Section 138 of the N.I. Act and she is accordingly acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that is challenged before this court by filing the above appeal.
3. Heard Sri.Harikumar, the learned counsel for the appellant/complainant and Sri.R.S.Kalkura, the learned counsel for the 1st respondent/accused.
4. The learned counsel for the appellant vehemently submitted that the husband of the accused received money from the complainant on 15/10/2004, as part of the frequent Crl.A.No.48 of 2007 :-3-: transaction between the complainant and the husband of the accused and on demand the accused issued Ext.P1 cheque dated 20/01/2005. The learned counsel submitted that, during the above transaction, the husband of the accused and the accused were in cordial relationship and they divorced only on 25/5/2006 and therefore, according to the learned counsel, the contention raised by the defence to the effect that the husband of the accused misused her cheque, cannot be accepted. But, the learned Magistrate overlooking the above facts and accepting the defence version, disbelieved the case of the complainant and acquitted the accused and therefore the order of acquittal recorded by the trial court is liable to be reversed and she is to be convicted.
5. On the other hand, Mr.Kalkura, the learned counsel for the 1st respondent/accused submitted that the complainant has miserably failed to prove the transaction including the exact date of borrowal and issuance of the cheque and further submitted that the documents produced by the defence are sufficient to substantiate the case of the defence and the Crl.A.No.48 of 2007 :-4-: accused by producing Ext.D2 complaint succeeded in convincing the court as to how Ext.P1 cheque reached in the hands of the complainant. Therefore, according to the learned counsel for the respondent no interference is warranted.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned counsel for the respondent. I have gone through the judgment of the trial court as well as the evidence on record.
7. In the complaint the allegation is that the accused came to the house of the complainant at about 8 a.m. on 15/10/2004 and borrowed an amount of `95,000/- agreeing to repay the same as and when demanded by the complainant and thus when demanded the accused issued Ext.P1 cheque. But during the cross-examination PW.1 the complainant has stated that he knows the husband of the accused for the last 4-5 years and during the year 2004-05 they were friends and the husband of the accused was used to borrow money from him and he has a computer institution near the medical college. If that be so, the averment of the complainant in the Crl.A.No.48 of 2007 :-5-: complaint that the accused, who is a lady came to the house of the complainant at 8 a.m. on 15/10/2004 and borrowed the money cannot be believed since, even on that day according to the complainant, the husband of the accused as well as the complainant were good friends and therefore no need for the accused to go to the house of the complainant and to borrow the money. Except the bare claim of the complainant about the transaction, there is no independent evidence or any material including any document. As correctly pointed out by the learned counsel for the defence the complainant has no specific and definite case as on which date the accused issued the cheque in question. So, the transaction claimed by the complainant cannot be believed.
8. In the present case the specific case of the defence advanced right from the time of issuing Ext.D1 reply, is to the effect that the cheque in question is one among several cheques obtained by the husband of the accused from her hand for the purchase of the bike making believe her for producing the same in the bank towards monthly installment. Ext.D2 Crl.A.No.48 of 2007 :-6-: dated 30/11/2004 is a copy of the complaint filed by the father of the accused before the Asst. Commissioner of Police, Thiruvananthapuram and in the said complaint there is already reference to Ext.P1 cheque, which is bearing No.811749. The above facts itself shows that, even before Ext.P3 statutory notice the accused has got registered her grievance and complaint against her husband with respect to the cheque in question. So the above contemporary documents produced by the defence vividly shows as to how Ext.P1 cheque reached in the hands of the complainant and the said facts are sufficient to disbelieve the version of the complainant about the issuance of the cheque.
9. Moreover, going by the evidence of the complainant it can be seen that the so-called amount was obtained for the purpose of the husband of the accused and there is no evidence to show that it was borrowed by the accused. Therefore, it cannot be said that Ext.P1 cheque was issued by the accused to discharge any debt. So, according to me, the complainant has miserably failed to establish the essential Crl.A.No.48 of 2007 :-7-: ingredients of Section 138 of the N.I. Act and therefore the learned Magistrate of the trial court is perfectly legal and correct in his finding that there is no independent evidence or material to show the accused issued Ext.P1 cheque in discharge of any part or whole legally enforceable debt. The above finding, according to me, is fully correct and supported by the evidence and materials on record and for that reason it cannot be said that the above judgment of the trial court is perverse or illegal warranting interference of this Court in an appeal against the acquittal of the accused. In the result, I find no merit in this appeal and accordingly the same is dismissed. V.K.MOHANAN, JUDGE skj