IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl L P No. 487 of 2007()
1. M/S.SREE RAGH GENERAL FINANCE LTD.,
... Petitioner
Vs
1. JOSE P. VARGHESE,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.SOORAJ T.ELENJICKAL
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :20/07/2007
O R D E R
K. Thankappan, J.
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Crl.L.P. No. 487 of 2007
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Dated this the 20th day of July, 2007
O R D E R
This is a petition to grant special leave to appeal from the order of
acquittal passed by Judicial Magistrate of the First Class-I, Kochi in
C.C.No.2945/2003. The appellant is a financial institution represented by
its power of attorney holder. As per the complaint, towards his legally
enforceable debt the 1st respondent had issued Ext.P1 cheque to the
appellant. When the cheque was presented for encashment, it was
dishonoured for insufficiency of funds. The appellant caused to issue a
lawyer’s notice to the 1st respondent and in spite of the receipt of the notice,
the 1st respondent did not pay the amount covered by Ext.P1 cheque. Hence,
the complaint had been filed alleging that the 1st respondent had committed
an offence under section 138 of the Negotiable Instruments Act . To prove
the case against the 1st respondent PW1 was examined and Exts.P1 to P6
were marked. After closing the evidence, the 1st respondent was questioned
under section 313 Cr.P.C. He denied the allegation and stated that he had
entered into a hire purchase agreement with the appellant to purchase a
motor bike and as per the terms of the agreement, the amount had to be
Crl.LP 487/07 2
repaid in 36 instalments and when he could not make payment after 28th
instalment, the appellant made entries in a blank cheque which was given
as security while entering into the agreement. On the side of the defence
the 1st respondent himself was examined as DW1 and Exts.D1 and D2
were marked. After considering the entire evidence, the trial court found
that Ext.P1 cheque was executed and issued by the 1st respondent to the
appellant for the discharge of a legally enforceable debt as contemplated
under section 138 of the Negotiable Instruments Act and hence the 1st
respondent was not guilty and he was acquitted under section 255(1)
Cr.P.C. Against the above findings entered by the trial court, the petition is
filed.
2. Question to be considered in this petition is whether the finding
entered by the trial occur is justifiable or not?
3. The case of the petitioner is that Ext.P1 cheque was issued in
discharge of a legally enforceable debt. The case of the 1st respondent is
that he had entered into a hire purchase agreement with the appellant to
purchase a motor bike and Ext.P1 is one of the blank cheque given by him
to the appellant while entering to the hire purchase agreement. The trial
court after considering the entire evidence found that the 1st respondent has
discharged his burden by the preponderance of probability that Ext.P1 was
Crl.LP 487/07 3
a cheque issued as blank and as security by the 1st respondent to the
appellant.. The above question was considered by this Court in a decision
reported in Sudha Beevi V. State of Kerala (2004(3) KLT 746). In the
above decision this Court held that if the negotiable instrument is not
supported by consideration, there was no question of the provision of
section 138 of the Act being attracted.
2. In the above circumstances, this Court is of the view that the
impugned judgment requires any interference by this Court. Hence, leave
to appeal is rejected.
K. Thankappan,
Judge.
mn.
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K.Thankappan,J.
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Crl.l.P.No. /200
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ORDER
-6-2007