IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 401 of 2001()
1. C.MANIKANTAN NAIR
... Petitioner
Vs
1. S.KRISHNAKUMAR
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :11/04/2008
O R D E R
K.P.BALACHANDRAN, J.
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Crl. Appeal No.401 of 2001
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Dated this the 11th day of April, 2008
JUDGMENT
The complainant in C.C.510/96 on the file
of the Judicial First Class Magistrate’s
Court-I, Neyyattinkara is the appellant. He
assails in this appeal the acquittal of the
first respondent of offence punishable under
Section 138 of the N.I. Act vide Section 255
(1) of the Cr.P.C.
2. The first respondent filed complaint
in the court below alleging inter alia that
the accused is a business man engaged in real
estate business; that for his business
purposes he borrowed Rs.89,500/- from the
appellant on 15/03/96 and issued Ext.P1 cheque
in discharge of the said debt with date
15/04/96 drawn on his account at the District
Co-operative Bank, Kollam; that the cheque was
forwarded for encashment through his bankers
the Federal Bank Nemom branch Thiruvananthapuram
Crl. Appeal No.401 of 2001 -2-
and it was returned dishonoured by the drawee
bank under Ext.P2 dishonour memorandum
assigning the reason funds insufficient that
Ext.P1 cheque along with Ext.P2 memorandum was
forwarded to him by his bankers under Ext.P3
memorandum that thereupon, the original of
Ext.P4 notice dt.15/05/96 was caused to be
issued to the first respondent under Ext.P5
postal registration receipt intimating the
first respondent of dishonour of the said
cheque and demanding payment of the amount
covered by the cheque, but that the first
respondent who received the original of Ext.P4
notice under Ext.P6 postal acknowledgment card
has not paid up the amounts covered by the
cheque either within the statutory period or
ever thereafter and he has thereby committed
offence punishable under Section 138 of the
N.I. Act.
3. The learned Magistrate registered the
complaint on his file as C.C.510/96 taking
Crl. Appeal No.401 of 2001 -3-
cognizance of the offence under Section 138 of
the N.I. Act recording the sworn statement of
the appellant. On issuance of summons the
first respondent entered appearance and he was
served with copies of all relevant records in
the case and he was questioned by the
Magistrate reading over the particulars of the
offence and explaining it to him. Thereupon,
he pleaded not guilty and consequently, a
trial of the case was conducted by the court
below. On the side of the appellant PWs.1 and
2 were examined and Exts.P1 to P8 were got
marked. On the complainant closing his
evidence the first respondent was questioned
by the Magistrate under Section 313 Cr.P.C.
Thereupon, he generally denied all
incriminating circumstances appearing in
evidence against him and maintained that he is
innocent. According to him, Ext.P1 cheque was
issued by him not in connection with the
transaction alleged but that in connection
Crl. Appeal No.401 of 2001 -4-
with an agreement to sell property belonging
to the first respondent an agreement was
executed and by way of advance Rs.10,500/- was
paid in cash and for the balance Rs.89,500/-
Ext.P1 cheque was issued and the appellant
gave him duly executed the agreement and the
prior documents but that as the extent of the
property was less by three cents the agreement
was not performed.
4. On the defence side DW1 is examined
and Exts.D1 to D7 were got marked. The court
below considered the case in the light of the
evidence adduced as aforesaid; found that the
appellant has failed to prove and establish
guilt in the accused and consequently,
acquitted the first respondent of offence
punishable under Section 138 of the N.I. Act
as already stated. Hence, this appeal by the
aggrieved appellant.
5. It is vehemently contended before me
by the learned counsel for the appellant that
Crl. Appeal No.401 of 2001 -5-
Ext.D1 agreement was executed by the
appellant; his wife and his father-in-law
receiving an amount of Rs.1 lakh in advance
agreeing to sell an extent of 19.5 cents to
the first respondent before 15/04/96; that the
value was being fixed at Rs.13,250/- per cent
and that the transaction evidenced by Ext.P1
has absolutely no connection with the
transaction evidenced by Ext.D1 and that there
is no mention in Ext.D1 that the amount of
Rs.1 lakh was being advanced by payment of
Rs.89,500/- by Ext.P1 cheque and the balance
only in cash and that the court below has not
properly appreciated the case and has
acquitted the accused entering into a wrong
finding that the appellant has not established
the case alleged though the evidence is
sufficient to establish the case of the
appellant.
6. On the other hand, it is vehemently
contended by the counsel for the first
Crl. Appeal No.401 of 2001 -6-
respondent that the extent of property was
found to be less on measurement and therefore,
the first respondent withdrew from purchasing
the property and consequently Ext.D1 agreement
was not performed and that it is to wreak
vengeance that the appellant has filed the
present complaint and that the first
respondent has already filed O.S.1329/98 on
the file of the Munsiff’s Court,
Thiruvananthapuram against the first
respondent, his wife and his father-in-law who
are parties in Ext.D1 agreement praying for a
decree for return of the advance amount of
Rs.10,500/- with interest and cost and for a
direction for return of Ext.P1 cheque for the
balance amount of Rs.89,500/- that being
cheque delivered over to the appellant to
satisfy the advance of Rs.1 lakh under Ext.D1
agreement.
7. Ext.D3 is the plaint in the said suit.
Ext.D4 is the written statement filed therein
Crl. Appeal No.401 of 2001 -7-
by defendants 1 to 3 in the said suit of whom
the second defendant is the appellant. Ext.D5
is copy of petition filed by the first
respondent for attachment before judgment of
the property agreed to be sold for the amount
sought to be recovered in Ext.D3 suit. Ext.D2
is the attested copy of notice issued by the
first respondent to the appellant, his wife
and his father in law and Ext.D6 is reply
issued by them thereto. The said notice and
reply would show that there existed dispute
with respect to extent of land that was
available for sale to the first respondent
under Ext.D1 agreement. It is seen from Ext.D2
that it was being issued on 12/06/96 whereas
the complaint was being filed by the appellant
in the court below subsequent to that on
15/06/96. This suggests that the complaint
filed by the appellant in the court below is a
counter blast for action proposed vide Ext.D2
notice from the second respondent. Even in
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Ext.D2 notice the case of the first respondent
is that the amount of Rs.1 lakh advanced under
Ext.D1 agreement was by payment of Rs.10,500/-
in cash and the balance by Ext.P1 cheque. If
at all the first respondent had paid Rs.1 lakh
in cash under Ext.D1 agreement certainly he
would not have filed Ext.D3 suit advancing
claim for return of Ext.P1 cheque and the
balance amount paid under Ext.D1 agreement.
The appellant as PW1 has admitted in cross
examination that the amount of Rs.1 lakh
received under Ext.D1 from the first
respondent is not refunded to him but in the
next breath he says that that amount was
received by his father-in-law. The suggestion
put to him that Ext.D1 was being issued to
satisfy the amount made mention of in Ext.P1
has however been denied by PW1. It is worthy
to note that there is absolutely no evidence
furnished by PW1 as regards the source of
money that he had, to advance Rs.89,500/- to
Crl. Appeal No.401 of 2001 -9-
the first respondent on 15/03/96 especially
when he states that the amount under Ext.D1
was being received by way of advance by his
father-in-law. It has been held by the Apex
Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008
(1) KHC 410 SC) that the presumption available
under Section 139 of the N.I. Act is not
regarding existence of a debt or regarding
existence of a legally enforceable/recoverable
debt but that the presumption available in
favour of the holder of the cheque is only
that he received it in discharge of debt or
other liability. If at all as is contended by
the first respondent the cheque was not being
issued to make up Rs.1 lakh by way of advance
under Ext.D1 agreement and as contended by the
appellant the said advance was being received
by his father-in-law it was up to the
appellant to show from where he did have so
much funds with him to advance Rs.89,500/- to
the first respondent on his asking for a loan.
Crl. Appeal No.401 of 2001 -10-
There is absolutely no evidence as regards the
financial ability of the appellant. A
suggestion was put from this Court as to
whether the appellant is ready to settle the
matter along with Ext.D3 suit and to have an
amicable settlement of all disputes between
him and the first respondent provided the
first respondent gives up all claims under
Ext.D1 and returns all the original documents
received under Ext.D1. But counsel for the
appellant submitted that the transactions are
different and that he has to ascertain however
the willingness of his party. Accordingly the
case was posted to this day to ascertain
chances of settlement. Today, the counsel for
the respondent has brought all the original
documents which the first respondent received
under Ext.D1 agreement for sale and the
counsel for the appellant submits that he is
not aware as to whether these are the
documents. When asked as to whether the appeal
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can be withdrawn in case the documents brought
by the counsel for the respondent are the
documents received under Ext.D1 the answer of
the counsel for the appellant was that he has
further to ask the appellant. However, the
appellant also is not present before court. It
appears that the appellant is not at all
interested in settling the matter and it is
not proper also to adjourn this case further
when the party is not desirous of settling the
matter. In view of my discussions on merits of
the case made above, I am of the view that the
appellant has not established that Ext.P1
cheque is one issued by the first respondent
to him in discharge of any debt or other
liability and that the appellant is also not
shown to have any source to advance so much
amount to the first respondent on the mere
asking especially when even the amount which
the appellant states as having been received
namely Rs.1 lakh under Ext.D1 was being
Crl. Appeal No.401 of 2001 -12-
received according to him by his father-in-law
and not by him. Hence, concurring with the
finding of the court below I also conclude
that the appellant has miserably failed to
establish a case for conviction for offence
under Section 138 of the N.I. Act as against
the first respondent. This appeal is hence,
devoid of merit and deserves only to be
dismissed.
8. In the result, I dismiss this Criminal
Appeal.
K.P.BALACHANDRAN,
JUDGE
kns/-