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.
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CRL.A.NO.856 OF 2003
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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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