IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1204 of 2001(A)
1. K.K.RAJAN
... Petitioner
Vs
1. E.K.JOSEPH
... Respondent
For Petitioner :SRI.P.M.SAJI
For Respondent :SRI.S.P.ARAVINDAKSHAN PILLAY
The Hon'ble MR. Justice K.THANKAPPAN
Dated :10/08/2007
O R D E R
K. Thankappan, J.
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Crl. A. 1204 of 2001
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Dated this the 10th day of August,2007
O R D E R
Appellant was the complainant in C.C.No.676/1999 on the file of
the Court of the Judicial Magistrate of the First Class, Vadakara. As per the
complaint, the 1st respondent borrowed an amount of Rs.1,05,000/- and in
discharge of the above debt, he issued a cheque and when it was
presented for encashment, the same was dishonoured on the ground of
insufficiency of funds in the account of the 1st respondent. Hence, on
complying the provisions regarding notice, reply etc., the complaint has
been filed alleging that respondents 1 and 2 had committed an offence
punishable under section 138 of Negotiable Instruments Act. To prove the
case against respondents 1 and 2, the petitioner himself was examined as
PW1 and two other witnesses were examined as PWs.2 and 3 and Exts.P1
to P11 were marked. After closing the evidence adduced by the petitioner,
the 1st respondent was questioned under section 313 Cr.P.C. He denied the
prosecution allegation and stated that he purchased a bus from one Moosa
on bona fide belief that Moosa was the registered owner and it was sold to
one Andy. Since father of Moosa had filed a complaint before court sating
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that he was the registered owner of the bus, the bus was seized by the police
and handed over possession to the father of Moosa. The 1st respondent had
entered into an agreement with Andy and towards security of that agreement
the 1st respondent issued 5 cheque leaves to Andy and one of the cheque
leaves was misused for filing the complaint. Ext.D1 was produced on the
side of the defence. After considering the entire evidence, the trial court
found that there was no evidence to show that the appellant advanced
Rs.1,05,000/- to the 1st respondent and towards discharge of that debt, he
issued Ext.P1 cheque and hence an offence under section 138 of the
Negotiable Instruments Act was not attracted. Aggrieved by the above, the
petitioner has approached this Court by filing the appeal.
2. Heard both sides.
3. The specific contention of the appellant is that the cheque in
question was issued by the 1st respondent in discharge of an amount of
Rs.1,05,000/- alleged to have been borrowed by the 1st respondent. The trial
court found that the appellant was not having any transaction with the 1st
respondent and he was acting as a benami for somebody. It has come out in
evidence that even though the appellant stated that he used to write the
account of the 2nd respondent firm, he was not aware what is the business
done by the 2nd respondent firm. The trial court found that the evidence
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adduced by PWs.1 to 3 was sufficient to show that the case put forward by
the 1st respondent was more probable. The trial court also found that there
was no evidence to show that Rs.1,05,000/- was legally due to the appellant
from the 1st respondent.
4. On considering the entire evidence, this Court finds that the
judgment of the trial court requires no interference by this Court. Hence, the
appeal fails and it stands dismissed.
K. Thankappan,
Judge.
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K. Thankappan,J.
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Crl.A.1204/2001
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Judgment
10-8-2007