IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 701 of 2000() 1. P.SURENDRAN ... Petitioner Vs 1. L.T.VARGHEESE ... Respondent For Petitioner :SRI.S.RAJKUMAR For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice A.K.BASHEER Dated :01/12/2008 O R D E R A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 701 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2008 JUDGMENT
The complainant in a prosecution under Section 138 of the
Negotiable Instrument Act has preferred this appeal impugning the
order of acquittal passed by the trial court. In the order of acquittal the
learned Magistrate found that the appellant/complainant had failed to
prove the charge against the respondent/accused.
2. The case of the complainant was that the accused had issued
Ext.P1 cheque for Rs.35,000/- in discharge of a debt but when the
cheque was presented for encashment, it was dishonoured due to
insufficiency of funds in the account of the accused. The statutory
demand notice did not evoke any response from the accused, nor did
he discharge the liability. Hence the complaint.
3. The complainant was examined as Pw.1 and the bank official
was examined as Pw.2. Exts.P1 to P5 were marked on the side of the
complainant. The accused got himself examined as Dw.1, though no
document was produced on his side.
4. The defence set up by the accused was that Ext.P1 cheque
was not supported by any consideration as alleged by the complainant.
According to the accused, he had borrowed only Rs.10,000/- from the
complainant on the strength of a promissory note. At that time he had
handed over a signed blank cheque to the complainant as security for
return of the money. He had paid off the liability thereafter but the
complainant insisted for huge interest and for that reason he did not
return the blank cheque. The accused contended that the said blank
cheque was misused by the complainant for launching the prosecution.
5. It may be noticed that the specific case of the complainant in
the complaint was that the accused had borrowed money from him
after executing a promissory note and that Ext.P1 cheque for a sum of
Rs.35,000/- was issued by the accused towards part payment. When the
complainant was examined as Pw.1, he had admitted in the course of
his cross-examination that he had lost the promissory note
somewhere . Thus the promissory note never saw the light of the day.
6. Further, the complainant had admitted that all the entries in
the cheque were in his own handwriting. It is true that the accused had
put the signature in Ext.P1. But according to the accused, the
complainant had misused the blank cheque handed over by him at the
time of borrowal of Rs.10,000/-, which of course was on the strength
of a promissory note.
7. The learned Magistrate had noticed that the complainant is a
practising lawyer and the accused is a layman. The omission on the
part of the complainant to produce the promissory note weighed with
the learned Magistrate, especially in view of the specific case of the
accused that he had borrowed only Rs.10,000/- and executed a
promissory note in acknowledgement of the said transaction. The
learned Magistrate took the view that in the backdrop of the above
specific contention raised by the accused, the non production of the
promissory note by the complainant cannot be brushed aside lightly.
8. As mentioned earlier, the specific case of the complainant
was that the accused had borrowed some money from him after
executing a promissory note. Significantly, the complainant did not
reveal what was the exact amount borrowed by the accused. In that
view of the matter the finding entered by the learned Magistrate cannot
9. I have carefully perused the deposition of Pws.1 and 2 and
the averments in the complaint. The scope of interference in an appeal
against acquittal is undoubtedly very narrow. The reasoning of the
learned Magistrate cannot be termed as totally illegal, arbitrary or
perverse. In that view of the matter, I do not find any reason to
interfere with the order of acquittal passed by the learned Magistrate.
The appeal fails and it is accordingly dismissed.