IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 28 of 2011()
1. P.RADHAKRISHNAN
... Petitioner
Vs
1. ANTO KUNJAPPA, S/O.KUNJAPPA
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.JIJO PAUL
For Respondent :SRI.RAJESH CHAKYAT
The Hon'ble MRS. Justice K.HEMA
Dated :21/01/2011
O R D E R
K.HEMA, J.
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Criminal Appeal No.28 of 2011
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Dated 21st January, 2011.
J U D G M E N T
This appeal is filed against an order of acquittal.
2. The appellant is the complainant. He filed a
complaint before the Magistrate Court against first respondent,
alleging offence under Section 138 of the Negotiable
Instruments Act on the allegation that Rs.5,50,000/- was due
from first respondent to the complainant and towards
repayment of the said amount, he issued Ext.P1 cheque for the
said amount. The cheque, on presentation was dishonoured
and a lawyer notice was issued. The notice was accepted by
accused, but no reply was sent and no payment was made.
Hence, the complaint.
3. To prove the prosecution case, PW1 was
examined and Exts.P1 to P6 were marked. The accused took up
a contention that he was a subscriber in the chitty conducted
by Kausthubham Kuries. He gave a blank cheque as security to
the said company, but it is misused by complainant. No
amount is due from the accused to the complainant, it is
submitted.
Crl.Appeal No.28/11 2
4. The trial court, on an analysis of the evidence in
detail found that the solitary evidence of PW1 was not sufficient
to prove the case against accused. The trial court found that
execution is not proved. It was observed that PW1 had no
special relationship with accused and he did not remember
even the date on which the huge amount was allegedly given to
accused. Further, the loan was advanced without obtaining any
security. It was also found that PW1 had no source of income to
advance an amount of Rs.5,50,000/-. The relevant findings in
paragraphs 12 and 13 are extracted hereunder :
“If the evidence of PW1 is to be believed, he allegedly
advanced a huge amount of Rs.5,50,000/- as loan to the
accused without obtaining any security. No special
relationship between the parties which might have resulted in
such a transaction has been brought out. PW1 stated in his
cross examination that the accused had supplied metal to the
hollow brick institution run by PW1. At that time, the accused
was having a quarrel. However, PW1 has no case that there
had been any previous loan transaction between himself and
the accused. It is not believable that the alleged supply of
metal by the accused to PW1 would have persuaded PW1 to
part with a huge amount of Rs.5,50,000/- without obtaining
any security. Further, going by the evidence of PW1, the
Crl.Appeal No.28/11 3
accused allegedly issued Ext.P1 at a time when PW1 was not
having any document to prove the alleged loan transaction
and at a time when the funds were insufficient in the account
of the accused. Such a case is inherently improbable.
The source of PW1 to advance Rs.5,50,000/- is under
challenge. PW1 stated in his cross examination that he gets
income of Rs.25,000/- from business. However, he is not an
income tax payee. He tried to explain that he had received
amounts from 5 persons in his business and the said amounts
were advanced to the accused. At the same time, he admitted
that the said alleged receipt of amounts are not shown in the
accounts of his institution. He further stated that the
collections of the company were also advanced to the
accused. The above versions of PW1 are not proved by any
documentary evidence. The conclusion to be drawn is that the
source of PW1 to advance Ext.P1 amount has not been proved.
It is yet another reason to reject the case of the complainant.”
5. Learned counsel for appellant vehemently
contended that the accused did not send any reply to the
lawyer notice. He did not deny the transaction nor execution of
the cheque at the earliest opportunity. He also did not
probabilise his case and this fact is found by the trial court
itself. In such circumstances, the appeal may be admitted, it is
Crl.Appeal No.28/11 4
submitted.
6. On hearing appellant’s counsel and on going
through the order, I am not satisfied that this is a fit case to
admit the appeal on the grounds advanced. The mere failure to
send a reply notice may not be sufficient to interfere in the
findings entered into by the trial court on the relevant aspects.
The source of income itself is under challenge and evidence of
PW1 was not sufficient to conclude that he had sufficient
income to give a huge amount of Rs.5,50,000/- to the accused,
that too, with whom he had no special relationship. I do not
find any reason to interfere in the findings of the trial court or
admit the appeal.
This appeal is dismissed.
K.HEMA, JUDGE.
tgs