IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl L P No. 160 of 2007()
1. V. GOPALAKRISHNA BHAT,
... Petitioner
Vs
1. ABDUL KHADER, S/O.SEEDI BEARY,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.T.K.VIPINDAS
The Hon'ble MR. Justice K.THANKAPPAN
Dated :30/03/2007
O R D E R
K. THANKAPPAN, J.
----------------------------------------------------
CRL.L.P. 160 OF 2007
----------------------------------------------------
DT. MARCH 30, 2007
ORDER
This is an application for special leave to appeal against the judgment
in C.C.No.90/2005 on the file of the Judicial Magistrate of First Class Court-II,
Kasaragod. The petitioner/complainant filed a complaint alleging that the 1st
respondent had issued a cheque for an amount of Rs.3 lakhs on 1.11.2002 in
discharge of the said amount as owed by him to the complainant. But when
the cheque was presented for encashment, the same was dishonoured due
to the insufficiency of funds to honour the cheque in the account of the
respondent. On getting intimation from the bank regarding the dishonour, the
petitioner/complainant caused to send Ext.P4 lawyer’s notice demanding
payment of the amount covered by the cheque. But, in spite of the receipt of
the said notice, as the respondent had not paid the amount covered by the
cheque, a complaint has been filed before the court alleging that the
respondent had committed an offence punishable under sec.138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). To
prove his case against the respondent, the petitioner/complainant examined
himself as PW.1 and relied on Exts.P1 to P6. After closing the evidence of
the petitioner./complainant, the respondent was questioned under sec.313
Cr.P.C. Denying the allegations in the complaint, the respondent had stated
that he had no transaction with the appellant which led to the issuance of
Ext.P1 cheque as alleged in the complaint. The respondent had further
stated that the cheque in question was issued by him to one Sathyanarayana
CRL.L.P.160/2007
: 2 :
Bhat in connection with the loan taken from him as a security and the same
was not issued in favour of the petitioner/complainant at all. On considering
the entire evidence the trial court found that the petitioner/complainant
miserably failed to prove the transaction between the petitioner/complainant
and the respondent which led to the issuance of Ext.P1 cheque in favour of
the complainant and accordingly the respondent has been acquitted. Against
the acquittal this special leave petition is attempted. This court heard the
learned counsel appearing for the petitioner and perused the records made
available to this court. This court also had gone through the deposition of the
complainant and other documents. The specific case set up by the
complainant in the complaint is that the respondent is known to him for the
last 20 years and all on a sudden on 11.1.2002 the respondent approached
him and he was in urgent need of money and therefore he had given an
amount of Rs.3 lakhs to the respondent. To discharge the said amount
Ext.P1 has been issued on the same day. The further case of the
petitioner/complainant is that the cheque was issued at the Sathyanarayana
Mandiram when the respondent met him at that Mandiram. It is also the case
of the petitioner/complainant that the cheque in question was written in the
handwriting of the respondent and it was written by the respondent before
him. With the above allegation evidence has been adduced. The case set
up by the respondent in the statement under sec.313 Cr.P.C. and when PW.1
was cross-examined is that the cheque in question was issued to one
Sathyanarayana Bhat as a security for a loan which the respondent had taken
from him and not given to the petitioner/complainant. The trial court had
CRL.L.P.160/2007
: 3 :
considered the evidence adduced by the petitioner/complainant and came to
the conclusion that as per the report of the handwriting expert, it was reported
that the handwriting in Ext.P1 cheque was not tallying with that of the
handwriting of the respondent and hence it was conclusively proved that there
is no evidence to show that the cheque in question was filled up by the
respondent himself. Hence the trial court had found that the evidence given
by the petitioner/complainant that the respondent had filled up the cheque in
question before him was found false and that apart the trial court had
conclusively held that the petitioner/complainant failed to prove the
transaction between the appellant and the respondent and there is no other
corroborative piece of evidence to show that the petitioner/complainant had
paid an amount of Rs.3 lakhs to the respondent on 1.11.2002 as alleged in
the complaint. No witness was examined and Pw.1 (the complainant himself)
has admitted that nobody was present at the time of handing over the money
at the Sathyanarayana Mandiram. It is unbelievable to see that a person like
the petitioner would depart an amount of Rs.3 lakhs without the presence of
anybody else and that too had paid at the Sathyanarayana Mandiram. It is
common case that the Sathyanarayana Mandiram is a public place in which
ordinarily some other persons other than the petitioner/complainant and the
respondent would also be present. In the above circumstances the
petitioner/complainant failed to prove the transaction between the
petitioner/complainant and the respondent. As per sec.118 of the Act, there
are some presumptions available to the petitioner/complainant with regard to
the consideration, date and time of acceptance, endorsement etc. But these
CRL.L.P.160/2007
: 4 :
presumptions could be drawn only when the transaction is proved. In this
case as the complainant failed to prove the very transaction, he is not entitled
for the presumptions available to the petitioner/complainant under sec.118
and sec.139 of the Act. To attract an offence under sec.138 of the Act, the
petitioner/complainant should prove that there was a transaction between
petitioner/complainant and the accused and in pursuance to that transaction a
consideration has been passed on and on the basis of the receipt of such
consideration, the negotiable instrument viz. the cheque has been passed by
the respondent. If these three ingredients are not proved, this court cannot
come to a conclusion that there exists a legally enforceable debt so as to
attract an offence under sec.138 of the Act. In the above circumstances and
on appreciation of the evidence, this court see that the judgment of the trial
court requires no interference. Accordingly this special leave petition stands
dismissed.
K.THANKAPPAN, JUDGE.
mt/-