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.
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Crl.A.No.206 of 2003
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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
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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.
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Crl.A.No.206 of 2003
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JUDGMENT
19th July, 2010