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Sajeev K.S. vs Pushpavalli Vasudevan on 10 June, 2009

Kerala High Court
Sajeev K.S. vs Pushpavalli Vasudevan on 10 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 856 of 2003()


1. SAJEEV K.S., S/O.SUKUMARAN,
                      ...  Petitioner

                        Vs



1. PUSHPAVALLI VASUDEVAN, E.W.S. 814,
                       ...       Respondent

2. THE STATE OF KERALA,

                For Petitioner  :SRI.C.AJITH KUMAR (KALLESSERIL)

                For Respondent  :SRI.PHILIP T.VARGHESE

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :10/06/2009

 O R D E R
                      M.N. KRISHNAN, J.

                       ---------------------------

                    CRL.A.NO.856 OF 2003

                       ------------------------------

              Dated this the 10th day of June, 2009


                           JUDGMENT

This is an appeal preferred against the order of acquittal

in C.C.No.286/2000 of the JFCM-II, Aluva. It is the case of the

complainant that the accused had borrowed a sum of

Rs.25,000/= and towards the discharge of the liability, had

issued a cheque, which when presented for encashment,

returned with the endorsement of insufficiency of funds.

Thereafter a statutory notice was issued and on account of

the non-payment, prosecution was initiated under Section 138 of

the N.I.Act. The case of the defence appears to be that on two

occasions she had borrowed a sum of Rs.10,000/= each from

the complainant and at the time of borrowal, she had given a

blank signed cheque as early as in the year 1997 which had

been utilised by the complainant to file a false case of this

nature.

2. The trial court, on analysis of the materials, arrived

at a decision that the case put up by the accused appears to be

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more probable and acceptable and therefore did not

accept the evidence of execution of the cheque by the

accused in favour of the complainant. In a 138 N.I.Act case,

the necessary ingredients to be established are that the

cheque has been issued towards the discharge of the liability

and which when presented for encashment was returned for

insufficiency of funds. The fact that which has been returned

for insufficiency of funds is established in this case. But the

question to be considered is whether it was issued towards the

discharge of the liability and whether it was issued by the

accused for that purpose. The complaint is absolutely silent

about the date of advancement of the amount. The complaint

is also silent about the date of issuance of the cheque. One

would expect a complainant to aver at least these basic

ingredients in the complaint. It is in this backdrop, we have to

analyse the case. The accused in this case is running a tea

shop. It is her case that she had borrowed the amount twice

from the complainant who is a money lender. She had

produced Ext.D1 account book and the signature against the

entry in Ext.D1 account book which is marked as Exts.D1(a)

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and (b) has been admitted by the complainant. It relates to

the period August 1998 as well as June 1998. It shows that the

accused had paid at the rate of Rs.150/- per day and it is seen

initialed by the complainant. When confronted with such a

difficult situation, he would depose that the accused owed the

amount to one Noushad and it was towards the amount due to

Noushad the entries were written and he had initialed it. But

the heading of Ext.D1(a) itself shows that it is written as

Sajeevan. One cannot digest that every day a third person

endorsing the receipt of an amount of another person with

whom he had no direct connections. So, this is a telling

circumstance in this case regarding the probability of the case

alleged by the accused. Then it has to be again borne in

mind that a loose cheque leaf was obtained in the month of

July, 1997 by the accused. It has to be remembered that a

solitary loose cheque is obtained normally only for the

immediate use whereas if the case of the complainant as is

accepted, it has been used only after a period of at least 2 =

years. That also shows that the case of the accused that a

blank signed cheque was given at the time of advancement

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of Rs.10,000/= appears to be more probable and acceptable.

So, these are telling circumstances which would indicate

that the evidence adduced by PW1 is not satisfactory or

sufficient that Ext.P1 cheque is issued towards the discharge of

the liability. Therefore, I do not find any ground to interfere

with the said decision rendered by the court below. So far as

the other ingredients are concerned, when the basic ingredient

is missing, the other will not survive and therefore the order

of acquittal does not call for any interference.

So, the appeal fails and the same is dismissed.

M.N. KRISHNAN, JUDGE

cl

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M.N. KRISHNAN, J.

CRL.A.NO.856 OF 2003

JUDGMENT

10th day of June, 2009

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