High Court Kerala High Court

V. Gopalakrishna Bhat vs Abdul Khader on 30 March, 2007

Kerala High Court
V. Gopalakrishna Bhat vs Abdul Khader on 30 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl L P No. 160 of 2007()


1. V. GOPALAKRISHNA BHAT,
                      ...  Petitioner

                        Vs



1. ABDUL KHADER, S/O.SEEDI BEARY,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.S.V.BALAKRISHNA IYER (SR.)

                For Respondent  :SRI.T.K.VIPINDAS

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :30/03/2007

 O R D E R
                                    K. THANKAPPAN, J.

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

                                   CRL.L.P. 160 OF 2007

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

                                    DT. MARCH 30, 2007


                                             ORDER

This is an application for special leave to appeal against the judgment

in C.C.No.90/2005 on the file of the Judicial Magistrate of First Class Court-II,

Kasaragod. The petitioner/complainant filed a complaint alleging that the 1st

respondent had issued a cheque for an amount of Rs.3 lakhs on 1.11.2002 in

discharge of the said amount as owed by him to the complainant. But when

the cheque was presented for encashment, the same was dishonoured due

to the insufficiency of funds to honour the cheque in the account of the

respondent. On getting intimation from the bank regarding the dishonour, the

petitioner/complainant caused to send Ext.P4 lawyer’s notice demanding

payment of the amount covered by the cheque. But, in spite of the receipt of

the said notice, as the respondent had not paid the amount covered by the

cheque, a complaint has been filed before the court alleging that the

respondent had committed an offence punishable under sec.138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). To

prove his case against the respondent, the petitioner/complainant examined

himself as PW.1 and relied on Exts.P1 to P6. After closing the evidence of

the petitioner./complainant, the respondent was questioned under sec.313

Cr.P.C. Denying the allegations in the complaint, the respondent had stated

that he had no transaction with the appellant which led to the issuance of

Ext.P1 cheque as alleged in the complaint. The respondent had further

stated that the cheque in question was issued by him to one Sathyanarayana

CRL.L.P.160/2007

: 2 :

Bhat in connection with the loan taken from him as a security and the same

was not issued in favour of the petitioner/complainant at all. On considering

the entire evidence the trial court found that the petitioner/complainant

miserably failed to prove the transaction between the petitioner/complainant

and the respondent which led to the issuance of Ext.P1 cheque in favour of

the complainant and accordingly the respondent has been acquitted. Against

the acquittal this special leave petition is attempted. This court heard the

learned counsel appearing for the petitioner and perused the records made

available to this court. This court also had gone through the deposition of the

complainant and other documents. The specific case set up by the

complainant in the complaint is that the respondent is known to him for the

last 20 years and all on a sudden on 11.1.2002 the respondent approached

him and he was in urgent need of money and therefore he had given an

amount of Rs.3 lakhs to the respondent. To discharge the said amount

Ext.P1 has been issued on the same day. The further case of the

petitioner/complainant is that the cheque was issued at the Sathyanarayana

Mandiram when the respondent met him at that Mandiram. It is also the case

of the petitioner/complainant that the cheque in question was written in the

handwriting of the respondent and it was written by the respondent before

him. With the above allegation evidence has been adduced. The case set

up by the respondent in the statement under sec.313 Cr.P.C. and when PW.1

was cross-examined is that the cheque in question was issued to one

Sathyanarayana Bhat as a security for a loan which the respondent had taken

from him and not given to the petitioner/complainant. The trial court had

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considered the evidence adduced by the petitioner/complainant and came to

the conclusion that as per the report of the handwriting expert, it was reported

that the handwriting in Ext.P1 cheque was not tallying with that of the

handwriting of the respondent and hence it was conclusively proved that there

is no evidence to show that the cheque in question was filled up by the

respondent himself. Hence the trial court had found that the evidence given

by the petitioner/complainant that the respondent had filled up the cheque in

question before him was found false and that apart the trial court had

conclusively held that the petitioner/complainant failed to prove the

transaction between the appellant and the respondent and there is no other

corroborative piece of evidence to show that the petitioner/complainant had

paid an amount of Rs.3 lakhs to the respondent on 1.11.2002 as alleged in

the complaint. No witness was examined and Pw.1 (the complainant himself)

has admitted that nobody was present at the time of handing over the money

at the Sathyanarayana Mandiram. It is unbelievable to see that a person like

the petitioner would depart an amount of Rs.3 lakhs without the presence of

anybody else and that too had paid at the Sathyanarayana Mandiram. It is

common case that the Sathyanarayana Mandiram is a public place in which

ordinarily some other persons other than the petitioner/complainant and the

respondent would also be present. In the above circumstances the

petitioner/complainant failed to prove the transaction between the

petitioner/complainant and the respondent. As per sec.118 of the Act, there

are some presumptions available to the petitioner/complainant with regard to

the consideration, date and time of acceptance, endorsement etc. But these

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presumptions could be drawn only when the transaction is proved. In this

case as the complainant failed to prove the very transaction, he is not entitled

for the presumptions available to the petitioner/complainant under sec.118

and sec.139 of the Act. To attract an offence under sec.138 of the Act, the

petitioner/complainant should prove that there was a transaction between

petitioner/complainant and the accused and in pursuance to that transaction a

consideration has been passed on and on the basis of the receipt of such

consideration, the negotiable instrument viz. the cheque has been passed by

the respondent. If these three ingredients are not proved, this court cannot

come to a conclusion that there exists a legally enforceable debt so as to

attract an offence under sec.138 of the Act. In the above circumstances and

on appreciation of the evidence, this court see that the judgment of the trial

court requires no interference. Accordingly this special leave petition stands

dismissed.

K.THANKAPPAN, JUDGE.

mt/-