Full Judgment
IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY,THE17H DAY OF FEBRUARY201428TH MAGHA, 1935 CRL.A.No. 1666 of 2008 ( ) --------------------------- ST11412005 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTAYAM APPELLANT(S)/PETITIONER/COMPLAINANT:: -------------------------------------------------- MANOJ JAMES, S/O.CHACKO, KOTTARAMUKALIL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM. BY ADV. SRI.TITUS MANI RESPONDENT(S)/ACCUSED AND STATE:: ------------------------------------------------------------------ 1. CHANDRIKA, W/O.BINU, VANCHIPURAKAL HOUSE, MANJOOR P.O., KOTTAYAM.
2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BYADV.SRI.P.N.SUKUMARAN R1 BYADV.SRI.BIJU SUKUMARAN R2 BY PUBLIC PROSECUTOR SMT.JASMINE THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON1702-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.HARIPRASAD, J.
-------------------------------------- Crl.Appeal No.1666 of 2008 -------------------------------------- Dated this the 17th day of February, 2014. JUDGMENT
Appeal filed under Section 378(4) of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Appellant challenges the judgment passed by the learned Judicial First Class Magistrate-I, Kottayam in S.T.No.1141 of 2005 dismissing the complaint. That was a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") which was dismissed by the trial court and the accused/1st respondent was acquitted. Facts, stated shortly, are that on 01.02.2005 the accused borrowed a sum of `1,00,000/- from the complainant agreeing to repay the amount on 01.03.2005. She issued a cheque dated 05.05.2005 for repayment of the amount. When the cheque was presented for collection, it was dishonoured for insufficiency of funds in the account. Thereafter, the complainant issued Ext.P3 notice for which Ext.D1 reply notice was caused to be issued. Case of the accused was total denial of any liability towards the complainant.
3. PW1 was examined and Exts.P1 to P8 were marked on the Crl.Appeal No.1666/2008 2 side of the complainant. DWs 1 and 2 testified and Ext.D1 and D2 series were marked on the side of the defence.
4. Heard the learned counsel for the appellant/complainant and the learned counsel for the 1st respondent/accused.
5. Court below found the case of the complainant that `1,00,000/- was advanced to the accused on 01.02.2005 without getting any document on the date of advance is highly improbable. The complainant when examined as PW1 deposed that he was having nine years previous acquaintance with the accused. This fact is strongly denied by the accused. According to the defence case, the complainant is a name lender for one Sreekumar with whom the husband of the accused had financial dealings. It is alleged by the accused that in connection with those dealings, he obtained cheques from husband of the accused as well as from the accused. It is the further case that one of such cheques is misused in this case. Accused raised a consistent case that there was no advancement of money by the complainant to the accused as alleged in the complaint.
6. PW1 deposed that the accused and her husband were conducting a cassette shop at Ettumanoor and for the purpose of their business, money was borrowed from him. It is his assertion that the complainant was closely knowing the accused nine years before the Crl.Appeal No.1666/2008 3 transaction. There was a dispute raised at the time of the trial regarding the paying capacity of the appellant/complainant. He would depose that he raised funds for advancing the amount from sale of his property and out of his savings in co-operative bank. However, no document is produced to show that he was financially stable and was having capacity to advance `1,00,000/- to the accused.
7. Learned counsel for the 1st respondent/accused relied on the testimony of DW1 to contend that husband of the accused filed a complaint before Gandhi Nagar Police Station against the above said Sreekumar for allegedly attempting to misuse the cheque obtained from the accused and her husband. DW1 testified that the petition was registered in the petition register of the Police Station and it was finally settled. Accused herself deposed as DW2 in this case. She stated that she had no previous acquaintance with the complainant. Even though the complainant when testified as PW1 would depose that Sreekumar named by the accused was not known to him, in cross examination of DW2, suggestions were put to her that Sreekumar is a relative of her. Learned counsel for the accused would contend that this itself would go to show that the complainant was acting as the agent of the said Sreekumar. Court below found that there is inherent improbability in the case of the complainant. Court below mainly doubted the case of the complainant for the reason that there was no Crl.Appeal No.1666/2008 4 document obtained at the time of allegedly advancing money by the complainant to the accused. The case of the complainant that they were known to each other for nine years before the transaction is a disputed fact and not effectively proved. Therefore, the court below was justified in finding that there was no legally enforceable debt existed towards the complainant by the accused.
8. There is dispute regarding proper execution of the cheque also. Complainant would depose that the accused put signature on Ext.P1 cheque before him and before that all other entries in the cheque were made. Court below was of the opinion that the possibility of misusing a blank cheque could not be ruled out. Considering the totality of evidence, I find that the court below is justified in dismissing the complaint and acquitting the accused. No interference is required. In the result, the appeal is dismissed. A. HARIPRASAD, JUDGE. cks