P.N.Vijayakumar vs Muraleedharan on 19 October, 2006

Kerala High Court
P.N.Vijayakumar vs Muraleedharan on 19 October, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 401 of 2004(B)


1. P.N.VIJAYAKUMAR,
                      ...  Petitioner

                        Vs



1. MURALEEDHARAN, S/O. SANKARAN NAIR,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.T.G.RAJENDRAN

                For Respondent  :SRI.R.SURENDRAN

The Hon'ble MRS. Justice K.HEMA

 Dated :19/10/2006

 O R D E R
                            K.HEMA, J.
            -----------------------------------------------
                Crl. Appeal No.401 of 2004
            -----------------------------------------------
        Dated this the 19th day of October, 2006.

                         J U D G M E N T

This appeal is filed against an order of acquittal.

2. The appellant filed a complaint against first

respondent alleging offence under Section 138 of the

Negotiable Instruments Act. As per the allegations in the

complaint, the accused borrowed a sum of Rs.1,50,000/- on

29.5.2000 from the complainant, assuring to repay the said

amount within one week. When the complainant demanded the

money back, the accused issued cheque (Ext.P1) dated

5.6.2002 for Rs.1,50,000/-. The complainant presented the

cheque in the bank but it was returned with endorsement “full

cover not received” as per Ext.P2 memo. A lawyer notice was

issued but no reply was sent nor any amount was paid to the

accused. A complaint was hence filed against the first

respondent alleging offence under Section 138 of the

Negotiable Instruments Act.

3. To prove the prosecution case, the complainant

examined himself as PW1. He marked Exts.P1 to P4. The

accused adduced defence evidence. DWs.1 and 2 were

Crl.Appeal No.401/2004 2

examined and Exts.D1 to D20 were marked on his side. After

analysing the evidence adduced in this case, the trial court

found that Ext.P1 is not the cheque entrusted by the accused

with the complainant but it was given by the accused to one

Pankajakshan. The trial court found that the case set up by the

complainant is absolutely false. The court below also found that

the cheque handed over to one Pankajakshan was manipulated

and a complaint was filed through the nephew. It was also held

that there is no money transaction between the complainant

and the accused. The above findings are under challenge in

this appeal.

4. While the appellant contended that the accused

borrowed Rs.1,50,000/- from the complainant on 29.5.2002 and

for the discharge of the said debt he issued Ext.P1 cheque,

accused raised a plea that he did not draw the cheque Ext.P1,

but it was a signed blank cheque given to the complainant’s

uncle as security in connection with transaction between

himself and one Pankajakshan.

5. The evidence of PW1 reveals that he is doing

Crl.Appeal No.401/2004 3

business (the details of the business are not stated by him) and

he is having an income of Rs.4,000/-. The amount allegedly

given as loan to the accused is Rs.1,50,000/-. His case is that

he paid the amount immediately on the request made by the

accused. According to him, the amount was for purchasing

plantain kept by him. It has come out from his evidence that he

did not receive any document before giving the amount to the

accused.

6. It is not in evidence that accused and

complainant are close friends or relatives so as to persuade him

to give such huge amount immediately on a mere request that

too, on his way to purchase plantains even without taking any

document to support payment. The evidence given by PW1

regarding the circumstances under which he paid the amount is

highly improbable.

7. In this connection, learned counsel appearing for

first respondent pointed out that, as per the Income Tax Act, a

person is supposed to give amount more than Rs.20,000/- at

the relevant time only by way of cheque. This has not been

Crl.Appeal No.401/2004 4

done by the complainant. It is also submitted that it is highly

improbable that he would give the amount even without the

support of any documentary evidence or without the presence

of a witness.

8. The case of the accused is that he had some

transaction with the complainant’s uncle who was a money

lender. The accused borrowed Rs.1,00,000/- from

Pankajakshan, the complainant’s uncle in the year 1996 for

interest, but subsequently the said person was insisting to

repay the amount with huge interest and he had to sell the

property belonging to his mother, wife and himself in favour of

the said Pankajakshan. He was forced to deposit certain huge

amounts which he had received from KSFE in the name of

Pankajakshan’s wife and his son. But, not being satisfied with

this, the said Pankajakshan has taken away his motor bike by

force and at this juncture he had met DW2, a Panchayat

Member to interfere and settle the issue. Under the mediation

of DW2 and others, the said Pankajakshan agreed to return four

blank cheques which were handed over by the accused to him

Crl.Appeal No.401/2004 5

under various circumstances. He also agreed to return the

motor bike to the accused.

9. Pursuant to the settlement so arrived at, an

agreement was executed by the said Pankajakshan in the

presence of DW2 and the said agreement is Ext.D5. To prove

the above contentions, accused produced as many as 20

documents and the genuineness of these documents are not

under dispute. DW2 was also examined to prove the

settlement, agreement, etc. as alleged by accused. DW2

deposed that Ext.D5 was written in his own handwriting and he

had signed in the same. He also deposed that there was a

mediation talk between the accused and Pankajakshan and the

agreement was also executed pursuant to the said settlement

talk and he had signed in the same.

10. DW2 also stated that Pankajakshan agreed to

return the four blank cheques mentioned in Ext.D5, which were

handed over by accused to him as security for repayment of

Rs.1,00,000/- and interest. Ext.D5 also shows that

Pankajakshan agreed to return the blank cheque and also

Crl.Appeal No.401/2004 6

signed stamp papers dated 25.8.2000. The number of the

cheques, the account number etc. are all shown in Ext.D5.

DW1 deposed that Ext.P1 is the cheque signed by him and

Ext.P1 is one of such cheques taken by Pankajakshan. The

evidence of DWs.1 and 2 coupled with Ext.D5 will show that

Ext.P1 was a blank cheque handed over by the accused to

Pankajakshan which was agreed to be returned by

Pankajakshan to the accused as per Ext.D5 dated 1.5.2002.

There is absolutely no reason to disbelieve the evidence of DW1

and DW2 and Ext.D5.

11. Learned counsel appearing for the appellant

would strenuously argue that Ext.D5 cannot be accepted, which

has been brought out at highly belated stage in the defence

evidence. It was argued that the document was not produced

before the court prior to the stage of defence evidence. It was

not confronted with PW1 during cross-examination, it is

submitted. The accused did not send any reply to the lawyer

notice issued at the instance of the complainant etc. But, on

going through the evidence of DW1, DW2 and Ext.D5, I do not

Crl.Appeal No.401/2004 7

find that any of these reasons would stand in the way of acting

upon Ext.D5.

12. PW1 deposed in court that accused “gave” a

cheque to him. In the complaint he stated that the accused

“issued” the cheque. It is only in cross-examination that PW1

stated that the accused had signed the cheque from his room.

His case is that the cheque was given at Kalpetta and that it

was a typed cheque. It appears from PW1’s evidence that the

accused had promised to repay the amount within one week

and on 5.2.2002 the complainant demanded payment of the

amount, while he incidentally met the accused at Kalpetta away

from his native place (Kozhikode), where he would have gone in

connection with his business. He deposed that nobody had

seen the accused handing over the cheque to him or signing

the same.

13. The appellant’s case is that he used to go to

Wayanad for business purpose. His case appears to be that on

one such visit, he asked for the cheque and immediately

handed over a typed cheque which contained the name of the

Crl.Appeal No.401/2004 8

complainant as payee. This evidence is too much to be

swallowed in the absence of any corroborative evidence. I find

it unsafe to place any reliance upon the evidence of PW1 to

hold that the accused gave a typed cheque to the complainant

and signed the same in his presence. When the evidence of

PW1 is tested as against the reliable defence evidence it can be

seen that as on 1.5.2002 the complainant’s uncle was having in

his possession Ext.P1, which was only a blank cheque at that

time. As rightly held by the court below, the complainant was

not giving a correct version regarding drawing of the cheque,

signing of the cheque etc.

14. The complainant failed to prove that the cheque

was drawn for discharge of any debt or liability. No offence

under Section 138 of the Act is made out. The court below has

rightly acquitted the accused. The proceedings initiated

against the complainant under Section 250 of the Code also

cannot be interfered with, since I do not find any ground to do

so. Learned counsel appearing for the appellant submitted that

the court has not recorded any opinion that there was no

Crl.Appeal No.401/2004 9

reasonable ground for making accusation against the accused

and therefore, no proceedings can be initiated against the

complainant under Section 250 of the Code. I cannot accept

this argument. The court below has found that PW1 has been

stating utter falsehood before the court regarding issuance of

cheque, payment of amount etc. Therefore, it cannot be said

that the learned Magistrate has not expressed any such

opinion. It is stated in the judgment itself that the complainant

approached the court with unclean hands. There was no

reasonable cause for making accusation against the accused.

In such circumstances, there is no ground to interfere with the

proceedings initiated against the complainant under Section

250 of the Code.

This appeal is dismissed.

K.HEMA, JUDGE.

Krs.

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