IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1895 of 2003()
1. RAIHANATH, KATTIOYODE CHAVOOR THUMPI
... Petitioner
Vs
1. STATE OF KERALA REP. BY THE
... Respondent
2. SAJEEVAN, S/O.KITTAN,
For Petitioner :SRI.M.SREEKUMAR
For Respondent :SRI.DILIP J. AKKARA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/07/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.1895 OF 2003
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Dated this the 7th day of July, 2009
JUDGMENT
This is an appeal preferred against the order of acquittal
passed by the JFCM-II, Attingal in C.C.No.60/2001. It is the
case of the complainant that the accused had borrowed a sum
of Rs.2,50,000/= and towards the discharge of the liability, had
issued Ext.P1 cheque, which when presented for encashment,
returned with the endorsement of insufficiency of funds. Though
notice was issued, a false reply was sent and thereafter the
prosecution has been initiated. The case of the accused appears
to be that he does not know the complainant at all and that
the complainant did not have any resource to advance a sum
of Rs. 2,50,000/= and on the date of the alleged transaction, he
was away in Gulf country and therefore the prosecution has to
fail.
2. After considering the materials available, the court
below found in favour of the accused and acquitted the accused
under Section 255(1) of Cr.P.C. It is against that decision,
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the complainant has preferred the appeal.
3. The point that arises for determination in the appeal is
whether there is anything to interfere with the decision rendered
by the court below.
4. Point:
It is the case of the complainant that the accused had
borrowed a sum of Rs.2,50,000/= and had issued a cheque,
Ext.P1 towards the discharge of the liability, which when
presented for encashment, returned with the endorsement of
insufficiency of funds. The defence of the accused is that of a
total denial, even the acquaintance. It is admitted by PW1 in
cross examination that she was working in a textile shop
having a monthly income of Rs.400/=. She had stated before
the court that she had raised this amount by selling her
property, pledging her ornaments and also withdrawing Rs. One
lakh from the Federal Bank, Vengode. When the resource of
the complainant was challenged with a total denial of
transaction, it has to be proved that she had financial
background to advance the amount. A reading of the evidence
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of Pw1 also would establish that she did not have much
personal acquaintance with the accused. She would depose
the relationship that her sister had married a person and that
person and her brother were working together along with the
accused and that is the acquaintance. It is a very remote
acquaintance. Why should a person, who does not have any
contact with the accused, pledges her ornaments, sells her
property and withdraws the amount from the bank to advance
a loan without document, is a matter which raises great
suspicion in the mind of the court. To crown these things, the
materials available in the form of Exts. D1 to D3 is sufficient to
disprove the case of the complainant. These documents would
show that the accused had applied for an emergency
certificate and on 25.12.1999 he was deported to India. These
documents would show that the accused was abroad during
November, 1999. So, the case of the complainant that the
accused had borrowed an amount on 10.11.1999 cannot be
true.
5. I find that the court below has approached the
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matter only in the correct perspective and had acquitted the
accused in accordance with law. It does not call for any
interference. The criminal appeal lacks merit and the same is
dismissed.
M.N. KRISHNAN, JUDGE
cl
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