Babu Raj vs Vidhyadharan on 19 January, 2011

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 86 of 2011()


1. BABU RAJ,
                      ...  Petitioner

                        Vs



1. VIDHYADHARAN, S/O.RAMAN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.O.D.SIVADAS

                For Respondent  : No Appearance

The Hon'ble MRS. Justice K.HEMA

 Dated :19/01/2011

 O R D E R
                          K.HEMA, J.
         -----------------------------------------------
               Criminal Appeal No.86 of 2011
         -----------------------------------------------
                  Dated 19th January, 2011.

                       J U D G M E N T

This appeal arises from an order of acquittal.

2. Appellant is the complainant. According to him,

accused, who is first respondent herein borrowed a sum of

Rs.50,000/- from the complainant and issued Ext.P1 cheque for

discharge of the same. On presentation of the cheque to the

bank, it was returned with the endorsement “funds insufficient”.

A lawyer notice was issued demanding payment, but no

payment was made, though accused accepted the notice.

Hence the complaint was filed.

3. To prove the case, complainant examined PW1

and PW2 and marked Exts.P1 to P6. The accused took up a

defence that his brother-in-law purchased some gold

ornaments from Kanchanam Fashion Jewellery, Oyoor and he

paid some amount also. They assured to pay the balance

amount after the marriage and as security, a blank cheque

belonging to appellant was given. Subsequently, complainant

misused the blank cheque and filed this false complaint, it is

contended. The appellant did not owe any money to the

Crl.Appeal No.86/11 2

complainant and he did not issue any cheque for any liability.

4. On an analysis of the evidence on record, trial

court found that the case set up by accused is more probable

and that the complainant failed to prove the execution of

Ext.P1. Thus, complainant failed to establish that the cheque

(Ext.P1) was issued to the complainant for discharge of any

legally enforceable debt.

5. Referring to the evidence of PW1, the

complainant, the trial court observed as follows :

“Any way, the complainant in cross examination would
fairly admit that he is the proprietor of Kanchanam
Jewellery at Oyoor. It is also admitted by him that he is a
money lender by profession. Further PW1 would admit
that the brother-in-law of the accused had purchased some
gold ornaments from Kanchanam Jewellery. The case of
the accused is that Ext.P1 was a blank cheque issued by
the accused to the complainant as a security for the
balance amount of Rs.10,000/-. The accused is not at all
admitting the execution of Ext.P1 cheque.”

6. The trial court also entered findings regarding the

nature of the writings in the cheque and also the signature in

Ext.P1. The trial court also made a reference to a writing on the

reverse side of the cheque. It also took note of the fact that

Ext.P3 intimation was sent by the bank to Kanchanam Fashion

Crl.Appeal No.86/11 3

Jewellery and observed that Ext.P1 must have been in custody

of Kanchanam Fashion Jewellery and it was presented through

the account of the jewellery. The trial court made the following

observations :

“It is to be noted that the signature of the accused is put in a
different ink than the other writings regarding the date, payee’s
name and amount. PW1 cannot say who had written all the
entries in Ext.P1. The falsity of the contention raised by PW1 is
evident from the entry made in the reverse side of Ext.P1. In the
reverse side of Ext.P1 the person who had written the name of
the payee, date and amount had written these words–

“CO 158 calculation ”

PW1 could not say anything regarding these entries. Further the
relationship of Ext.P1 with Kanchanam Jewellery is evident from
Ext.P3 intimation given by the Federal Bank. It is to be noted
that Ext.P3 is addressed to Kanchanam Fashion Jewellery, Oyoor.
This itself shows that Ext.P1 was in th custody of Kanchanam
Jewellery and the same was presented through the account of
Kanchanam Jewellery.”

7. Learned counsel for appellant could not give any

explanation regarding the observations made by the trial court

on the difference in the ink in the writing and also the

signature. The trial court also made observations regarding the

defence evidence. The observations are as follows :

“DW1 is the brother-in-law of the accused. He had produced
Ext.D1 receipt issued from Kanchanam Jewellery regarding the
borrowal of the gold ornaments. It is evident that a sum of
Rs.37,084/- was the total amount of the gold ornaments and a
sum of Rs.32,940/- was the outstanding balance. DW1 would

Crl.Appeal No.86/11 4

further contend that he had paid some amount and the balance
amount is only Rs.5140/-. The entries made in Ext.D1 clearly
show that the outstanding balance is only Rs.5140/-. DW1
would further contend that Ext.P1 was issued by the accused as
a security for the transaction.”

8. Learned counsel for appellant submitted that

Ext.D1 is a piece of paper and no value can be attached to the

same. However, it is clear from the order under challenge that

the trial court acquitted the accused not merely based on

Ext.D1. The trial court took note of various circumstances, facts

and evidence and came to a conclusion that the complainant

did not prove execution of the cheque. I do not find any reason

to interfere with the findings. There is no ground to admit this

appeal.

The appeal is dismissed.

K.HEMA, JUDGE.

tgs