IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 157 of 2000()
1. N.R.VENUGOPAL
... Petitioner
Vs
1. M.K.MURALEEDHARAN
... Respondent
For Petitioner :SRI.M.V.BOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :31/07/2008
O R D E R
A.K.BASHEER, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl.A. No. 157 OF 2000
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 31st day of July 2008
JUDGMENT
This appeal is at the instance of the complainant in a
prosecution under Section 138 of the Negotiable Instruments Act.
He impugns the order of acquittal passed by the trial court. The
learned Magistrate, while acquitting respondent No.1/accused, held
that the appellant had failed to prove that Ext.P1 cheque was issued
by the accused in discharge of a legally enforceable debt or liability.
2. The case of the complainant in brief was that the accused
had borrowed a sum of Rs.36,500/- from him on March 28, 1995,
promising to repay it very soon. But the accused repaid only
Rs.4,000/-in two instalments. When the complainant demanded for
payment of the balance sum, the accused refused to do so.
Therefore the complainant had lodged Ext.P7 complaint before the
Circle Inspector of Police, Kunnamkulam requesting for his
intervention and appropriate action in the matter. Ultimately, the
accused agreed to pay off the liability and issued Ext.P1 cheque
dated July 1, 1996 for Rs.32,000/-. But when the cheque was
presented for encashment, it was dishonoured due to insufficiency of
Crl.A : 157/2000
-:2:-
funds in the account of the accused. The liability was not discharged
by the accused in spite of issuance of statutory demand notice.
3. The complainant was examined in the case as PW1 and
Exts.P1 to P7 were marked on his side. There was no oral or
documentary on the side of the accused.
4. The defence set up by the accused, as discernible from the
cross examination of the complainant and answers given by him
when questioned under Section 313 of the Cr.P.C, appears to be a
total denial of any liability. Accused contended that Ext.P1 cheque
was obtained by the complainant by coercion and threat exerted by
the police.
5. The complainant himself admitted that he had sought
intervention of the police. Ext.P7 produced by the complainant was
the copy of the complaint preferred by him before the Circle Inspector
of police, Kunnamkulam. In cross examination, PW1 admitted
unambiguously that the Assistant Sub Inspector of Police had
mediated and it was as a result of such mediation that the accused
had agreed to pay Rs.32,000/-. But according to the complainant,
accused had handed over Ext.P1 cheque dated July 18, 1996 at his
Crl.A : 157/2000
-:3:-
office on July 1, 1996. No corroborative evidence was adduced by
the complainant in this regard. There was only the ipsi dixit of the
complainant on this aspect. PW1 had also admitted that he had not
obtained any receipt from the accused at the time when the money
was lent by him to the accused. According to the complainant he
was working in the office of a Tourist Bus Operator. His specific
case was that the accused was a stage carriage operator. He had
borrowed money from the complainant stating that he wanted to remit
the monthly instalment to the financier towards the loan availed of by
him for the bus. The complainant had further alleged that when he
asked for return of money from the accused, his response was that
he could recover it whichever way he wanted. The said response
clearly indicates that there was dispute with regard to the alleged
debt or liability. This was probabilised by the fact that the
complainant had approached the police for recovery of the alleged
debt. The police had admittedly intervened. Therefore the learned
Magistrate took the view that the case of the accused that Ext.P1
cheque was obtained from him by the police exerting pressure and
coercion was probable. Having carefully perused the deposition of
Crl.A : 157/2000
-:4:-
PW1 and Ext.P7 and other relevant materials in this regard, I do not
find any reason to take a different view, especially, since this is an
appeal against an order of acquittal. It is trite that interference with
an order of acquittal cannot be done as a matter of course, even if a
second view is possible. The Court must be circumspect in adopting
the other view, unless there are compelling circumstances and
clinging materials in support of the other possible alternate view.
6. There was yet another reason which persuaded the
Magistrate to acquit the accused. It was admitted by the complainant
himself that Ext.P1 cheque was issued in the name of Mr.Venu. The
complainant stated that he had corrected the name in the cheque as
`Venugopal’ as insisted by the bank officials, when it was presented
for encashment since the account was opened by the accused in the
name of Venugopal. The learned Magistrate relying on a decision of
their Lordship of Supreme Court in Anirudhan v. Thomco’s Bank
[AIR 1963 SC 746] held that the alteration, which was admittedly
made by a complainant being a unilateral act, it would not be binding
on the accused and therefore Section 87 of the Act would be
attracted.
Crl.A : 157/2000
-:5:-
7. It may be noticed that the case of the complainant was that
he had made the alteration as insisted by the bank officials without
the knowledge or consent of the accused. Therefore going by the
provisions contained in Section 87 of the Act, the instrument was
rendered void as against the accused, who was a party to the said
instrument. It is true that the complainant had contended that he had
approached the accused requesting him to correct his name in the
cheque, but since the accused did not concede to the request, he
had himself carried out the alteration. This explanation will not save
the complainant from the impact of the provisions contained in
Section 87 of the Act.
Having regard to the entire facts and circumstances, I am
satisfied that the view taken by the learned Magistrate was quite
reasonable and justifiable. Therefore the finding entered by the
learned Magistrate does not call for interference. The appeal
therefore fails. It is accordingly dismissed.
(A.K.BASHEER, JUDGE)
ttb
Crl.A : 157/2000
-:6:-