IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1050 of 2001()
1. SAJI.V.ITTY
... Petitioner
Vs
1. GEORGE IPE
... Respondent
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.B.SAINU
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :19/09/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.A.No.1050 of 2001
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Dated this the 19th day of September, 2007
JUDGMENT
The appellant is the complainant in the proceedings
initiated under Section 138 of the Negotiable Instruments Act in
which the accused has been acquitted.
2. It is the case of the complainant/appellant that on
5.10.1998 the impugned cheque for Rs.73,215/- was issued by
the accused towards discharge of debt due to the complainant
and that the same when presented got dishonoured for want of
funds in the account of the accused. The lawyer notice sent
demanding payment was not replied to.
3. The evidence adduced in the matter consisted of the
testimony of PW1 and Exts. P1 to P7. The defence got examined
DW1 and marked Exts. D1 to D13.
4. PW1, the complainant has testified in proof of the
execution of the cheque. He has also proved the documents in
support that included the dishonour memo, intimation, lawyer
notice, postal acknowledgment and ledger extract. The defence
CRL.A.NO.1050/2001 Page numbers
case put in the cross examination of PW1 is that the complainant
was running a financial institution by name Vettom Bankers and
that in the chitty run by the above institution, the father of the
accused was a subscriber and the accused as guarantor for the
chitty bid by the father of the accused he issued the blank
cheque to the complainant’s institution. PW1 has denied the
suggestion that he is conducting any chitty business. According
to him, he provided the loan to the accused as he is a neighbour.
Although, not stated by PW1 when DW2, the accused was
examined the suggestion is that the amount was given to PW1 in
3 instalments.
5. In order to prove the evidence of PW1, the defence
examined DWs’ 1 to 5 including DW2, the accused and DW5, the
father of the accused. DW1 is one Father Kurian who has
stated that it was at his instance that the accused was
persuaded to issue the cheque as guarantee to the Vettom
Bankers. He has stated that he happened to see the father of
the accused quarreling with the accused as he was not
amenable to issue the cheque and that he managed to get the
cheque from the accused and gave it to the father of the accused.
CRL.A.NO.1050/2001 Page numbers
DW4 is the independent witness who was examined to prove that
the Vettom Bankers are conducting the chitty. He has produced
Ext. D5 series receipts and Ext. D6 calendar of Vettom Bankers.
As pointed out by the counsel for the appellant Ext. D5 series did
not contain the name Vettom Bankers and that of the
complainant. I find that it is not specifically put to DW4 that the
complainant is not running any chitty transaction. DW5, the
father of the accused, has testified in support of the case set up
by the accused. Of course, the court below has noted that the
accused had attempted to create evidence by erasing address
written in Ext. D8 certificate of posting by which Ext. D9 is said
to have been sent to the complainant. According to DW2, the
accused, he had issued letter demanding the return of the
cheque vide Ext. D1 postal receipt and Ext. D2 postal
acknowledgments. But the copy of the letter could not be
produced. He has also stated that he had filed a complaint
before the Circle Inspector of Police of the area and before the
Revenue Minister vide Ext. D12. It is also noted by the court
below that as can be seen from Ext. D3 ledger extract of the
account of the accused the cheques having serial numbers 881,
CRL.A.NO.1050/2001 Page numbers
882 and 883 were presented to the bank and encashed on
5.7.1995, 22.2.1996 and 29.7.1996 respectively. The impugned
cheque is having the last digits as 884. Cheque Nos.885 and 886
were encashed on 30.12.1996 and 7.5.1998 respectively. The
alleged borrowal in the instant case is on 5.2.1998 which is also
the date of the cheque. I find that the above clearly shed light as
to the truth of the case set up by the defence. It is unlikely that
such a huge amount would have been given to a person in
instalments without obtaining any document especially by a
person who is running a finance out fit and also that the cheque
having serial No.884 as last digits would have been kept away
for issuing in October 1998. In view of the above evidence
adduced in the matter, I find that there is no scope for
interference in the finding of the court below.
The appeal is dismissed.
K.R.UDAYABHANU,
JUDGE
csl