IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl L P No. 438 of 2007()
1. T.R.ANU, THULASEEMANDIRAM,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. UNNIKRISHNAN @ IRSHAD,
For Petitioner :SRI.P.S.BIJU
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :09/07/2007
O R D E R
K. THANKAPPAN, J.
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CRL.L.P.NO.438 OF 2007
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Dated this the 9th day of July, 2007.
O R D E R
This is an application for special leave to appeal against the
judgment in C.C.No.74/2007 on the file of the Judicial Magistrate of
First Class-III, Kottarakkara. As per the complaint filed by the
petitioner/complainant, the 2nd respondent/accused had borrowed an
amount of Rs.1,50,000/= from the petitioner/complainant on
3.7.2005 and in discharge of the said amount, the 2nd respondent had
issued Ext.P1 cheque in favour of the petitioner on 8.7.2005. When
the cheque was presented for encashment, the same has been
dishonoured on the ground of insufficiency of fund with the account of
the 2nd respondent/accused. Complying the provisions regarding
notice etc., the complaint has been filed before the court alleging
that the 2nd respondent had committed the offence punishable under
Section 138 of the N.I.Act. To prove the case against the 2nd
respondent, the petitioner himself was examined as PW1 and relied
on Exts.P1 to P6. On closing the evidence adduced on behalf of the
petitioner, the 2nd respondent/accused was questioned under
Section 313 of the Code of Criminal Procedure. Denying the
CRL.L.P.NO.438/2007 2
allegations in the complaint, the 2nd respondent/accused has
stated that the cheque in question was not issued in favour of the
petitioner either to return an amount of Rs.1,50,000/= which was
borrowed by him as stated in the complaint whereas the same
ccheque was issued as a security for getting a job being arranged
by one Swami Preethathmanand in the S.N.D.P Devaswom. The
further case of the 2nd respondent was that the cheque and an
amount of Rs.1,50,000/= were also entrusted to the said Swami
Preethathmanand. But, no job was given and said cheque in
question issued as security has been misused by the petitioner for
filing the complaint against him. It was also the case of the 2nd
respondent that so many criminal cases are pending against the
said Swamiji and C.C.No.1465/2005 is also pending against him.
After considering the entire evidence , the trial court found that the
petitioner/complainant miserably failed to prove that the cheque in
question was issued in discharge of a legally enforcible debt. To
come to this conclusion, the trial court also relied on the evidence of
DW1, who was examined on behalf of the 2nd respondent, and also
relied on Ext.D1 notice. The trial court found that the 2nd
respondent had introduced the said Swamiji to the
complainant/petitioner. On believing the evidence of DW1 and the
CRL.L.P.NO.438/2007 3
case set up by the 2nd respondent, the trial court found that the
petitioner failed to prove that the cheque in question was issued in
favour of the petitioner in discharge of any legally enforcible debt
even if it was issued as security for liability of a 3rd party as set up by
the petitioner. There is no evidence to prove the case before the
lower court. In the above circumstances, this Court is of the
view that the leave application is merit less and it is dismissed.
K. THANKAPPAN, JUDGE.
cl
CRL.L.P.NO.438/2007 4