P.Surendran vs L.T.Vargheese on 1 December, 2008

       

  

  

 
 
  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.

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                          Crl.A.No. 701 of 2000

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              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

Crl.A.701/2000 2

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.

Crl.A.701/2000 3

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

be faulted.

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.

A.K. Basheer
Judge.

an.