IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 829 of 2006()
1. BABUKUTTAN ACHARY.R.,
... Petitioner
Vs
1. PRASANNA KUMARY.L., W/O.VIJAYAN KUTTY,
... Respondent
For Petitioner :SRI.K.S.MANU (PUNUKKONNOOR)
For Respondent :SRI.PREMCHAND R.NAIR
The Hon'ble MR. Justice V.GIRI
Dated :01/09/2008
O R D E R
V.GIRI, J.
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Criminal Appeal No. 829 of 2006
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Dated this the 1st day of September, 2008.
J U D G M E N T
The complainant in C.C.No.875/2003, on the files of the
Judicial First Class Magistrate Court-I, Kottarakkara, is the
appellant herein. The complaint was instituted alleging that the
accused, the sister of the complainant, had borrowed an amount
of Rs.80,000/- and in discharge of the said liability, issued Ext.P1
cheque. The same on presentation was returned due to want of
sufficient funds. After notice of demand was issued, a complaint
was instituted alleging that the amount was not paid. Whereas
the defence taken by the accused, as discernible from the
testimony of DWs 1 to 5, version given in 313 statement and the
documents adduced on her behalf, was essentially one of total
denial. She denied her signature in Ext.P1 cheque. It was her
case that she was residing in the house of PW1, the complainant,
till 1999, when she was married. But the cheque book was not
taken away by her to her matrimonial home, when she left her
brother’s home in 1999. Some family dispute arose in 2002 and
it is apparently as an off shoot of this dispute that the
Criminal Appeal No. 829 of 2008 2
complainant went ahead in filing the complaint alleging that the
accused had borrowed an amount of Rs.80,000/- and failed to
pay back the same. The complainant himself was examined as
PW1 and he proved the presentation of the cheque, dishonour of
the same, despatch of the statutory notice and non-payment of
amount in spite of service of notice whereas the accused took
upon herself the burden of rebutting the initial presumption.
According to PW1, an amount of Rs.80,000/-, borrowed by the
accused was procured by the complainant from two different
persons, Rs.30,000/- from one Ganesan and Rs.50,000/- from
one Vasudevan, the brother-in-law of the complainant. DW2,
Sri.Ganesan, was examined at the instance of the accused. He
denied that he had lent any money to the complainant as such,
though he admitted that he had entrusted some amount to the
complainant for construction purposes. DW4, the handwriting
expert had proved Ext.D3 report and according to the expert
opinion, the signature in Ext.P1 cheque was most probably the
same as the admitted signatures in 30 specimen documents. But
the court below undertook a comparison of the signature on its
own and declined to agree with the expert opinion. Reasons have
Criminal Appeal No. 829 of 2008 3
also been given for the same. The court below, on appreciation
of the entire evidence acquitted the accused, found that the
complainant was not able to prove the transaction or that the
cheque was issued by the accused in due discharge of the
liability.
2. I heard the counsel on both sides and have gone
through the copies of the deposition.
3. Apart from the testimony of PW1, there is no other
evidence to show that an amount of Rs.80,000/- was borrowed
by the accused and Ext.P1 cheque was issued in discharge of the
said liability. The complainant himself admits that his elder
brother knows about this transaction. The complainant could
have examined the said brother. But he failed to do so. No
other member of the family was examined at least to show that
the accused had actually borrowed an amount from the
complainant.
4. The testimony of DW2, Ganesan, definitely gives the
impression that the complainant had not borrowed any money
from Ganesan for giving it to the accused. Learned counsel for
the appellant submits that the complainant had borrowed money
Criminal Appeal No. 829 of 2008 4
from Ganesan and therefore testimony of DW2 has not been
correctly appreciated by the court below. The point is that no
suggestion is put forth to DW2, in the course of his cross
examination, that an amount of Rs.30,000/- has been borrowed
by the complainant. The reluctance on the part of the
complainant to go the whole hog in this regard is material.
5. What ultimately clinches the issue is, Ext.D1. Ext.D1
is alleged to be a statement in the form of a letter given by the
complainant before the DYSP, Punalur. Apparently, a complaint
was filed by the complainant before the Chief Minister. It was
then referred to the Circle Inspector of Police. Mediation by the
Circle Inspector bring about fruitful result in the matter. The
DYSP, proved Ext.D1 and his role in undertaking a mediation
between the two. Essentially, Ext.D1 evidences a withdrawal of
the complaint by the complainant originally lodged by him
against the C.I. of Police. But the version given in Ext.D1 as
regards the dispute between the complainant and the accused is
completely inconsistent with the version given by the
complainant in the court as well as in the complaint that an
amount of Rs.80,000/- was borrowed by the accused from the
Criminal Appeal No. 829 of 2008 5
complainant is Ext.D1. Ext.D1 describes Ext.P1 cheque as one
issued by the accused by way of alleged reimbursement of the
marriage expenses incurred at the time of marriage of the sister,
namely the accused. The complainant has not suggested that the
contents of Ext.D1 are false or that he was made to submit
Ext.D1 by coercion. There is no such suggestion to DW1, the
DYSP of police, who was examined to prove Ext.D1. It is also
noteworthy that Ext.D1 was submitted on 11.11.2004 well after
the complaint itself was filed and the proceedings in
C.C.875/2003 were under way. For all these reasons I am in
complete agreement with the court below that the complainant
has not able to prove due execution of the cheque and the other
ingredients necessary to make out the offence under Section 138
of the Negotiable Instruments Act.
For all these reasons I find no merit in the appeal and it is
accordingly dismissed.
V.GIRI, JUDGE
bkn/-