IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 778 of 2000()
1. T.P.DINESAN
... Petitioner
Vs
1. M.PAVITHRAN
... Respondent
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :SRI.R.SURENDRAN
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :31/10/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.A.No.778 of 2000
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Dated this the 31st day of October, 2007
JUDGMENT
The appellant is the complainant in C.C.No.27/00 in the file
of Additional Chief Judicial Magistrate Court, Thalassery with
respect to the offence under Section 138 of the Negotiable
Instruments Act in which the accused stands acquitted.
2. The complainant’s case is that the accused borrowed
a sum of Rs.75,000/- from the complainant on 10.8.1999 and
towards discharge of the above liability issued the impugned
cheque dated 30.12.1999 which when presented got dishonoured
for want of funds in the account of the accused.
3. The evidence adduced in the matter consisted of the
testimony of PWs’ 1 and 2, Exts. P1 to P7, DWs’ 1 and 2 and Exts.
D1 to D4.
4. PW1, the accountant of the bank, has testified with
respect to the execution of the cheque and dishonour of the
same. PW2, the complainant, has testified that the cheque was
dishonoured for want of funds in the account of the accused.
CRA.NO.778/2000 2
5. It is the case set up by the defence that the very
genesis of the complainant is false as the complainant has set up
a case that the amount was borrowed from his house by name
Kizhakke Manarath house at Panniyoor whereas according to the
accused the complainant has no such address and that he was
just a binami to one Palakkandy Chandran to whom he had
handed over two cheques as surety to one Shamsudheen who
subsequently committed suicide. It is his case that those
cheques were misused by Chandran and by misusing one cheque
the complainant has got the proceedings initiated under Section
138 of the Negotiable Instruments Act. It is contended that the
complainant has no his residence at Panniyoor and that he is
residing at New Mahe as can be seen from Ext. D4 voters list.
Ext. D1 is the returned postal cover wherein DW2, the postman,
has endorsed as not known. It was put in the cross examination
of DW1, the accused, that the above house at Panniyoor is owned
by one Nani for the last about 6 years. DW2 has testified as to
the fact that he made enquiries at two houses nearby and it was
then he made the above endorsement. It was suggested in the
cross examination that he has colluded with the complainant.
CRA.NO.778/2000 3
But, I find that no action has been initiated against the above
postman. The contention is that in fact it is not DW2 who has
made the endorsement. I find that the above suggestion was not
put to DW2 in the cross examination.
6. I find that the court below has also relied on the fact
that nothing has been brought out to show that the complainant
has got sufficient source to lend Rs.75,000/- which has to be
treated as a substantial amount in 1991. It is specifically put to
PW2 the complainant that he is not having the financial capacity
even to manage Rs.75/-. The version of PW2 is that he is doing a
wholesale business in fish and that for the same no licence is
required. In the circumstances, the specific defence is that the
complainant is a binami of Chandran. The above contention that
the complainant has no source is relevant. Nothing has been
produced to establish even prima facie that the complainant is a
person having sufficient means to lend a sum of Rs.75,000/-.
7. The contention that Ext. D1 postal cover and Ext. D4
voters list are not contemporary documents and hence the same
cannot be relied on to rebut the presumptions. I find that the
contention cannot be sustained in view of the fact that according
CRA.NO.778/2000 4
to the accused he came to know about the proceedings initiated
against him only as per the lawyer notice issued and for that he
has sent a reply also. The contention that the accused has no
such case in the other case filed by Chandran and in which the
accused has been admittedly convicted I find that it cannot be
treated as a clinching circumstance as it is also possible, as
pointed out by the counsel for the respondent that he would not
have anticipated that another proceedings would launched
against him through a stranger. In view of the fact and
considering the evidence as a whole, I find that no interference
is called in the order of the court below acquitting the accused.
The criminal appeal is dismissed.
K.R.UDAYABHANU,
JUDGE
csl