IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 293 of 2003()
1. K.VARGHESE GEORGE,
... Petitioner
Vs
1. K.V.THOMAS,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.SANJAY
For Respondent :SRI.B.RAMACHANDRAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/07/2009
O R D E R
M.N. KRISHNAN, J.
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Crl.A.NO.293 OF 2003
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Dated this the 3rd day of July, 2009
JUDGMENT
This is an appeal preferred against the judgment of acquittal
passed by the Additional Sessions Judge, North Paravur in
Crl.A.No.80/1999. The said appeal was preferred against the
conviction and sentence passed by the Judicial Magistrate of First
Class-II, Aluva in C.C.No.256/1996. It is the case of the
complainant that the accused who is his brother had borrowed a
sum of Rs.30,000/= and towards the discharge of the same, had
issued a cheque, which when presented for payment, returned
with the endorsement of insufficiency of funds. After complying
with the statutory formalities, prosecution had been launched under
Section 138 of the N.I.Act. The case of the defence is that the
accused approached his brother for a loan of Rs.30,000/= at the
time of construction of his house and his brother handed over an
Indira Vikas Pathra and later as the accused could get the
amount from other sources, he did not use the Indira Vikas
Pathra and therefore, informed the complainant about the same.
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While so, Dw2, who was working along with DW1 had requested
for some amount from DW1 and he was taken to the complainant
and the complainant gave him the Indira Vikas Pathra and as
the complainant was not acquainted with DW2, accused gave a
cheque as security and it is that cheque which is presented for
encashment under the pretext he had borrowed the amount. So,
the case of the complainant is that of a positive borrowal by the
accused from him and the cheqe is said to be towards the
discharge of the liability. The case of the accused is that he has
not borrowed any amount but had issued a cheque as security
since DW2 was not quite familiar with the complainant. So,
these are the facts which requires scrutiny. PW1 admits about
the handing over of Indira Vikas Pathra to DW1. So, the Indira
Vikas Pathra loom large in this transaction. Suppose as
contended by DWs 1 and 2 , PW1 has handed over Indira Vikas
Pathra to DW2 and that DW2 had given it to a finance
company to get the amount and that the finance company had
encashed it and appropriated that proceeds towards the liability
due from DW2, then the case set up by the accused will be
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probable and acceptable. If there is no such evidence then one
has to hold that the case of Pw1 has to be accepted and even if
it as security, it will be sufficient consideration. It has become
necessary for this Court to set aside both the judgments of the
court below and direct the trial court again to consider the matter
afresh by affording opportunities to both sides in support of
their respective contentions and if the accused as suggested now
is able to produce some documents to prove that it was through
DW2 the Indira Vikas Pathra has changed the hands, then the
case of the accused would become more probable which would go
against the complainant. So, as stated earlier, I set aside the
judgments of both the courts and direct the court below to
consider the matter afresh by affording equal opportunities to
both sides and then dispose of the matter in accordance with law.
The parties are directed to appear before the court below on
20.8.2009.
M.N. KRISHNAN, JUDGE
cl
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M.N. KRISHNAN, J.
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Crl.A.NO.293 OF 2003
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3rd day of July, 2009
JUDGMENT
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