High Court Kerala High Court

M.K.Madhavan vs T.M.Jayan on 19 July, 2010

Kerala High Court
M.K.Madhavan vs T.M.Jayan on 19 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 206 of 2003()


1. M.K.MADHAVAN, KOVILAKATHU MURI,
                      ...  Petitioner

                        Vs



1. T.M.JAYAN, S/O. T.S.MANI ACHARI,
                       ...       Respondent

2. STATE OF KERALA REP.BY THE PUBLIC

                For Petitioner  :SRI.P.SAMSUDIN

                For Respondent  :SRI.SUNNY MATHEW

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :19/07/2010

 O R D E R
             M.Sasidharan Nambiar, J.
            --------------------------
               Crl.A.No.206 of 2003
            --------------------------

                     JUDGMENT

The complainant in S.T.No.1058/1996 on the file

of Judicial First Class Magistrate’s Court,

Nilambur filed this appeal challenging the order of

acquittal. Appellant filed a complaint against the

first respondent alleging that on 5.1.1996, first

respondent borrowed Rs.45,000/- and towards its

repayment, issued Exhibit P1 cheque drawn in his

account showing the date 21.3.1996 and when the

cheque was presented for encashment, it was

dishonoured for want of sufficient funds and in

spite of issuing notice demanding the amount

covered by the dishonoured cheque, first respondent

did not pay the amount and thereby, he committed

the offence under Section 138 of Negotiable

Instruments Act.

2. First respondent pleaded not guilty.

Appellant was examined as PW1 and marked Exhibits

CRA 206/03 2

P1 to P7. First respondent was examined as DW1.

3. First respondent contended that he did not

borrow Rs.45,000/- and did not issue Exhibit P1

cheque towards discharge of any debt or liability

and instead, he had borrowed Rs.15,000/- and issued

a signed blank cheque as security at that time and

he had subsequently paid the amount, but, demanding

Rs.5,000/- as interest, the cheque was not returned

and after filling up that cheque, it was presented

and got it dishonoured and therefore, he is not

liable to be convicted.

4. Learned Magistrate, on the evidence, found

the first respondent not guilty. Learned Magistrate

found that as per the complaint, the cheque was not

issued subsequently when repayment was demanded and

from the evidence of PW1, it is not proved that

Exhibit P1 cheque was issued towards discharge of

any debt or liability.

5. Argument of the learned counsel is that

evidence of the first respondent as DW1 establishes

that there were several witnesses when he borrowed

CRA 206/03 3

the amount and issued the the cheque and none of

them was examined and on the evidence, learned

Magistrate was not justified in acquitting the

first respondent.

6. I have gone through the pleadings in the

complaint and the evidence of the appellant as PW1

and first respondent as DW1. As rightly found by

the learned Magistrate, on a reading of the

complaint, it is evident that the case of the

appellant was that first respondent borrowed

Rs.45,000/- on 5.1.1996 and towards its repayment,

the dishonoured cheque was issued. The case is not

that when first respondent failed to pay that

amount and appellant demanded the amount, Exhibit

P1 cheque was issued. On the other hand, the

averment in the complaint is only to the effect

that cheque was also issued on the date of borrowal

itself. When PW1 was examined, his case was that

first respondent borrowed Rs.45,000/- on 5.1.1996

promising to repay the same after two months and

when it was not paid, he demanded the amount and

CRA 206/03 4

then Exhibit P1 cheque was issued. Even then,

evidence is not that the cheque was issued on

21.3.1996, but, the cheque showing the date

21.3.1996 was issued, which indicates that the

cheque was not issued on 21.3.1996. On the evidence

on record, the order of acquittal cannot be

interfered.

7. It is the specific case of the first

respondent that he did not issue Exhibit P1 cheque

towards discharge of Rs.45,000/- borrowed and

instead, it was issued as a signed blank cheque at

the time when he borrowed Rs.15,000/-. The case is

that except the signature, nothing was written in

the cheque at that time. When appellant was

examined as PW1, it was suggested that the cheque

was issued without writing as security. True,

appellant denied it. But, neither in chief

examination nor in cross-examination, PW1 had a

case that the cheque was written and brought before

him and it was signed in his presence and handed

over to him. He had only stated that first

CRA 206/03 5

respondent issued the cheque. In cross-examination,

PW1 admitted that the handwriting in Exhibit P1

cheque is different from the signature. So also,

the ink. When first respondent was examined, in

chief examination, he deposed that he had handed

over Exhibit P1 cheque after putting his signature

alone and nothing was written in the cheque at that

time. Still, that evidence of DW1 was not

challenged in cross-examination. When it is

appreciated in the light of the admission of the

appellant that the handwriting and the ink used for

writing the cheque and putting the signature are

different, it can only be found that appellant did

not establish that Exhibit P1 cheque was issued by

the first respondent towards discharge of any debt

or liability. In such circumstances, I find no

reason to interfere with the order of acquittal.

Appeal fails and it is dismissed.




19th July, 2010        (M.Sasidharan Nambiar, Judge)
tkv

CRA 206/03    6




               M.Sasidharan Nambiar, J.

              --------------------------

                Crl.A.No.206 of 2003

              --------------------------

                      JUDGMENT



                    19th July, 2010