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.
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Crl. Appeal No.401 of 2004
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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
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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.
